William K. Jones - Insult To Injury - Libel, Slander, and Invasions of Privacy-University Press of Colorado (2003)

INSULT TO INJURY
LIBEL, SLANDER, AND INVASIONS OF PRIVACY
William K. Jones
INSULT TO INJURY
INSULT TO INJURY
LIBEL, SLANDER, AND INVASIONS OF PRIVACY
William K. Jones
U N I V E R S I T Y P R E S S O F C O L O R A D O
© 2003 by the University Press of Colorado
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Library of Congress Cataloging-in-Publication Data

Jones, William K.
Insult to injury : libel, slander, and invasions of privacy / William K. Jones.
p. cm.
Includes bibliographical references and index.
ISBN 0-87081-742-6 (hardcover : alk. paper)
1. Libel and slander—United States. 2. Privacy, Right of—United States. 3. Libel and slander—
United States—Cases. 4. Privacy, Right of—United States—Cases. I. Title.
KF1266 .J66 2003
346.7303'4—dc21
2003008786
Cover design by Daniel Pratt
Text design by Laura Furney
12 11 10 09 08 07 06 05 04 03 10 9 8 7 6 5 4 3 2 1
For Bunny,
who has made my life a joy
CONTENTS
Acknowledgments, ix
Prologue, 1
PA R T O N E POINT AND COUNTERPOINT
1 The Man Who Had to Leave Town, 7
2 “Heed Their Rising Voices,” 11
3 An Uncommon Common Law, 18
4 The First Amendment, 25
PA R T T W O PUBLIC OFFICIALS, PUBLIC FIGURES, AND PRIVATE PERSONS
5 Anything That Touches on Fitness for Office, 37
6 The Tale of the Furtive Night Watchman, 41
7 Into the Vortex of Public Controversy, 46
8 The Big Football Fix, 53
9 The Frame-up of Officer Nuccio, 61
10 The Golden Fleece of the Month Award, 67
11 The Reluctant Soviet Agent, 72
12 Special Cases: Unlimited, Irrelevant, and Involuntary
Public Figures, 78
13 Strictly Business, 86
14 Purely Private Libels, 97
PA R T T H R E E OTHER ASPECTS OF DEFAMATION AND FALSE LIGHT
15 Group Libels, 107
16 Looking for Love? Sorry, Wrong Number, 112
17 Blackmail, Treason, Hypocrisy, and Lies, 118
VIII CONTENTS
18 La Cosa Nostra at Your Service, 125

19 The Greatest Analyst Who Ever Lived, 129
20 Five Scientists Who Were Paid to Lie, 132
21 The Airman Who Almost Fell to Earth, 138
PA R T F O U R PROCEDURAL ISSUES AND THE PATH TO REFORM
22 Actual Malice at Issue, 149
23 The Losing Game, 156
24 Bring in Da Plea Bring in Da Writ, 161
25 Possible Pitfalls, 172
26 Paths Not Taken, 180
PA R T F I V E PRIVACY AND THE PRESS
27 The Right to Privacy, 191
28 Genius, Hero, Maverick, Threat, 195
29 The Man Who Would Be Woman, 202
30 Paparazzi, 216
31 Intrusions on Private Domains, 225
32 Broken Promises, 237
33 Deception and Subterfuge, 245
34 After the Pentagon Papers, 256
PA R T S I X FACT, FICTION, AND THE FUTURE
35 The Adventures of Artemus Jones, 273
36 Justice à la Corrigan, 280
37 The Impact of the Internet, 291
38 Concluding Observations, 305
Notes, 313
Bibliography, 363
Index, 371
ACKNOWLEDGMENTS
I W I S H T O T H A N K M Y C O L L E A G U E S at Columbia Law School for their helpful

suggestions, particularly Vincent Blasi, Michael Dorf, Robert Ferguson, Jane
Ginsberg, Victor Goldberg, Kent Greenawalt, Alfred Hill, Eben Moglen, Henry
Monaghan, and Peter Strauss. Dean Lance Liebman and Dean David Leebron
have been steadfast in their support. Most of all, I express my appreciation for
the efforts of my assistant, Susannah Silvey, without whom this volume could
not have been completed.
Excerpts from the Restatement of the Law (Second) of Torts (1965, 1977,
1979) and from the Restatement of the Law (Third) of Unfair Competition (1995)
are reprinted with the permission of the American Law Institute. All rights are
reserved under the Institute’s copyrights of 1965, 1977, 1979, and 1995.
The excerpt from Lon L. Fuller, “Human Interaction and the Law,” 14
American Journal of Jurisprudence 1 (1969), is reprinted with the permission of
the publisher, Notre Dame Law School. All rights are reserved.
INSULT TO INJURY
PROLOGUE 1
PROLOGUE
F O R M O R E T H A N S I X C E N T U R I E S , the Anglo-American legal system has pro-

vided compensation for emotional distress wrongfully inflicted. The earliest
cases involved assaults with deadly weapons. Despite the absence of contact in
some cases (the hatchet missed its mark), the victim recovered for fright and
mental anguish. But prior to the twentieth century it was unusual to find an
English or an American court imposing liability based on words alone, even
though the words had been uttered deliberately, had contravened accepted norms
of behavior, and had in fact inflicted serious psychic harm on the victim. The
major exception was defamation. A product of historical developments in Great
Britain in the sixteenth and seventeenth centuries, the law of defamation be-
came an integral part of the law of the United States following independence.
Briefly stated, the law of defamation protects a person against falsehoods
that expose him to hatred, contempt, or ridicule or cause him to be shunned by
his fellows or that tend to injure him in his trade or occupation. One concern is
economic: the adverse impact of such falsehoods on the victim’s livelihood. But
from its inception the law permitted damages, and in many cases presumed
damages, to compensate the victim for the mental anguish resulting from the
hatred, contempt, or ridicule to which he had been subjected.
In the early and middle years of the twentieth century, two related theories
of liability gained acceptance. One protected the individual’s right to privacy
against (1) unwarranted intrusions on private domains, (2) embarrassing disclo-
sures of private facts, (3) portrayals falsely associating a person with a commer-
cial product, and (4) other statements casting a person in a false light. The
2 PROLOGUE
principal harm inflicted by invasion of privacy, and the harm for which com-
pensation most often has been made, is the infliction of psychic harm. The
second recent development is the recognition of a claim—wholly apart from
any other theory of liability—against one who, by extreme and outrageous con-
duct, intentionally or recklessly inflicts severe emotional distress upon another.
Although invasions of privacy and intentional inflictions of emotional distress
may be accomplished by acts as well as by words, in fact most claims under
these headings are based on some form of expressive behavior or on conduct
related to such behavior (such as illicit attempts to acquire information).
These three expressive transgressions—defamation, invasion of privacy,
and intentional infliction of emotional distress—were adopted and implemented
by American courts through the mid-twentieth century without engendering
concern about potential conflicts with the First Amendment. In part, this was a
product of the amendment’s unusual history. Although it became effective in
1791, according broad protection for freedom of expression, the First Amend-
ment received scant judicial attention until the years following World War I.
Recognition of its scope and implications came slowly, and for many years it
was assumed that the various expressive wrongs—most significantly defama-
tion—could coexist with First Amendment guarantees of free expression without
significant conflict. All that changed in 1964. In New York Times Co. v. Sullivan,
the U.S. Supreme Court for the first time imposed significant limitations on
the recovery of damages for allegedly defamatory falsehoods. In subsequent
decisions the Court imposed the same or related restrictions on recoveries for
invasion of privacy and for intentional infliction of emotional distress.
The central focus of this book is the conflict between the First Amendment
and the laws providing compensation for psychic harm inflicted by statements
that are defamatory, that invade privacy, or that cause severe emotional distress
by extreme and outrageous means. To that end, this volume proceeds as follows.
Part One (Chapters 1–4) describes the extent and intensity of the conflict
between the First Amendment and the law of defamation. It explores the sub-
stantive content of common law defamation actions and the objectives sought
to be advanced in protecting freedom of expression under the First Amend-
ment. As indicated in Chapter 4, conflicts are avoidable in some circumstances
but not in others.
Parts Two and Three (Chapters 5–21) set forth the record of the courts—
both the Supreme Court and the lower courts—in addressing these conflicts.
The objective here is to examine how the Supreme Court’s limited pronounce-
ments have been applied in practice by the far more numerous lower court
decisions giving content to the guidelines articulated by the Supreme Court.
PROLOGUE 3
The guidelines are examined—both their theoretical exposition and their prac-
tical application—to determine whether they strike an appropriate balance be-
tween maintaining free and open discussions and protecting the individual’s
interest in freedom from the psychic harm resulting from defamatory false-
hoods. In many cases the outcome is unsatisfactory. On some occasions the
courts improperly restrict discussions of issues that profoundly affect the pub-
lic. On other occasions they curtail recoveries for defamation in contexts in
which protection against psychic harm is wholly consistent with advancing the
expressive objectives of the First Amendment. Viewing each of the many as-
pects of actual application, the book proposes discrete solutions that could
achieve a better reconciliation of the conflicting interests at stake.
But in the end there remains an underlying conflict not susceptible of reso-
lution simply by reforming the substantive principles presently guiding the courts
in passing on the difficult issues confronting them. A more radical approach is
required. That approach is a procedural one, discussed in detail in Part Four
(Chapters 22–26). The adoption of this approach would minimize, if not elimi-
nate, the severe difficulties experienced in attempting to apply the substantive
principles discussed in Parts Two and Three. Other proposed resolutions are
discussed, and ultimately rejected, in Chapter 26.
Part Five examines the law of privacy, particularly the issues posed by
intrusions on private domains and by public disclosures of embarrassing pri-
vate facts. The common law and constitutional issues in Part Four differ from
those engendered by the law of defamation in one important respect: here the
victim is not claiming an injury attributable to falsity. The victim’s claim is that
the facts were improperly ascertained by intrusive means or were inappropri-
ately disclosed to the public. But in either case the facts at issue are true facts.
That is the essence of the claims made under this heading. Accordingly, the
elaborate legal edifice erected to deal with defamatory falsehoods, and the pro-
posed substantive and procedural reforms recommended to resolve the prob-
lems posed in dealing with such falsehoods, have no application here.
Chapter 27 describes the evolution of the law’s recognition of a right to
privacy. Chapters 28 and 29 focus on challenges to public disclosure of allegedly
private facts. Chapters 30 to 34 deal with the law’s responses to claims of
intrusions on seclusion and other alleged improprieties associated with the as-
certainment of information held in confidence. No overarching solution is fea-
sible on this branch of the law. But particularized recommendations are made
in seeking to resolve the important issues posed.
In the case of intentional inflictions of emotional distress, no separate dis-
cussion has been attempted because these claims tend to arise in contexts closely
4 PROLOGUE
intertwined with either defamation or invasion of privacy. They can be dis-

cussed more effectively in conjunction with issues arising under those head-
ings. See, for example, the discussions of hate speech (in Chapters 15 and 37),
of ridicule by pornography (in Chapter 17), and of alternative approaches to
intrusions on seclusion and to public disclosure of private facts (Chapters 29–
31 in particular).
Part Six (Chapters 35–38) concludes the volume. It contains two chapters
on the relation between fact and fiction and one that discusses the impact of the
Internet on the topics discussed in this volume. The problems posed by fact and
fiction and by the Internet have been deferred to the final chapters because they
illustrate most dramatically the interplay between First Amendment values and
each of the three expressive wrongs—defamation, invasion of privacy, and in-
tentional infliction of emotional distress—as well as the curious ways in which
the three expressive wrongs interact with one another. Chapter 38 summarizes
the findings of this study and offers concluding observations.
The objective of this book is to build a bridge. On the one shore are the
grand theoretical concepts that have influenced legal and intellectual communi-
ties in discussions of the interaction between the First Amendment and legal
protections against psychic harm. On the other is the practical implementation
of these concepts in real-world litigation. Neither theory nor practice suffices in
itself. Both are required to shape meaningful solutions.
P A R T O N E
POINT AND
COUNTERPOINT
6 POINT AND COUNTERPOINT
T H E M A N W H O H A D T O L E AV E T O W N 7
O N E
THE MAN WHO HAD TO LEAVE TOWN
D E N I S R E T Y O P E R AT E D A S U C C E S S F U L F R E N C H R E S TA U R A N T , La Belle Epoque,
in Bay Harbor Islands, Florida. One evening in September 1982, Arthur Green
was having dinner at the restaurant and observed an incident at a nearby table
involving an acquaintance. The acquaintance complained to a waiter and later
to Rety that a veal chop was tough. Rety responded that there was nothing
wrong with the veal chop but that the customer was welcome to order another
dish in view of his dissatisfaction. Green did not overhear any of the conversa-
tion; he was aware only that his acquaintance appeared upset. The next day
Green learned from his acquaintance what had transpired the previous evening
and wrote a letter to the restaurant, giving a false account of the veal chop
incident and disparaging the quality of the restaurant.1
Rety was angered by the letter, and he telephoned Green to express his
displeasure. The telephone conversation escalated to a heated exchange. Ac-
cording to Rety, Green had called him a “Crazy Frenchman,” to which Rety had
replied, “I don’t know what you are, a crazy German, a crazy Italian, crazy Jew,
but I am sure you are more crazy than I am.” Green’s version was that Rety had
threatened him and his children, cursed at him, and called him anti-Semitic
names.2
Green sent Rety a succession of letters, the second of which accused Rety
of making vile anti-Semitic slurs during the telephone conversation, and stated
that Green was going to do everything in his power to destroy Rety’s restaurant
and run him out of town. Green sent copies of the letter to eight prominent
Jewish political and social leaders in the Bay Harbor Islands area and to various
friends and relatives. He also had about fifty conversations with others concern-
ing his confrontation with Rety.3
In the ensuing months, Green’s letter received wide circulation and publicity
throughout the Bay Harbor Islands community and elsewhere. Original recipi-
ents of the letter forwarded their copies to others. Stacks of the letter were
distributed at the Miami Beach Chamber of Commerce. The letter was discussed
at the town hall in Bay Harbor Islands, at the local chapter of the Anti-Defamation
League, and at other community organizations and social groups. Copies of the
letter were also circulated at prominent south Florida condominiums and apart-
ment buildings. The letter was read to a busload of American tourists in Israel
on a trip sponsored by the Greater Miami Jewish Federation.4
The widespread publication and republication of Green’s letter had a devas-
tating impact on Rety, both financially and emotionally. Bay Harbor Islands was
a predominantly Jewish community, Rety’s restaurant catered to a largely Jew-
ish clientele, and Green was a well-known and respected member of the Bay
Harbor Islands Jewish community. Rety’s restaurant experienced severe finan-
cial losses, and he was forced to declare bankruptcy. Rety was stripped of virtu-
ally all his financial resources.5
Rety and his family received hostile telephone calls, including death threats.
Callers threatened to blow up Rety’s restaurant and warned that his family should
not walk in the streets. Rety was also ostracized by the local business commu-
nity. In an unprecedented move, the Miami Beach Chamber of Commerce
voted to expel Denis Rety and his restaurant from membership. The court
observed: “From a well-established, honored and respected member of his com-
munity, [Rety] became a pariah. When he walked down the street in his neigh-
borhood, people crossed the street to walk on the other side. He was deliber-
ately slighted in public; for six months, he never slept more than two hours a
night, and felt himself ‘falling apart.’ [He] had lost everything.”6
In the end, Rety had to leave town. He and his family moved to New
Orleans where, with borrowed capital and a small down payment, Rety pur-
chased another restaurant. Arthur Green had made good on his promise to ruin
Rety and run him out of town.
In Rety’s action for defamation, the jury accepted his version of the pivotal
telephone conversation—a conclusion accepted by the appellate court in view
of various contradictory and widely differing accounts of the conversation Green
had given to others. After a nine-day trial, during which fifty-eight witnesses
testified, the jury awarded Rety $22.5 million in compensatory and punitive
damages. The trial judge reduced the award to $3.1 million, but the appellate
court approved an award of $5.5 million, emphasizing the malicious character
of Green’s conduct.7
R E T Y V . G R E E N I S A D M I T T E D L Y A N E X T R E M E E X A M P L E , but it is hardly unique.

During the anticommunist hysteria of the 1950s, in which Senator Joe McCarthy
T H E M A N W H O H A D T O L E AV E T O W N 9
played such an important role, countless lives were ruined by unfounded or

distorted accusations of communist affiliation. One of the casualties was John
Henry Faulk, a radio and television performer. He had his own show and made
guest appearances on other radio and television programs. Aware, Inc., an
organization formed to combat communism in the entertainment industry,
published a bulletin charging that Faulk was either a communist or a partici-
pant in communist activities. The bulletin went to about 2,000 names. As the
court commented, “The mailing was designed to and did reach every source or
possible source of plaintiff ’s employment—radio and television stations, ad-
vertising agencies, sponsors of programs and advertisers, newspapers and col-
umnists, and particularly the station employing the plaintiff and the sponsors
supporting his program.”8 Aware’s charges against Faulk were unfounded.
The impact on Faulk was total devastation. Aware and its officers “pursued
the plaintiff with the libel making sure that its poison would be injected di-
rectly into the wellsprings of his professional and economic existence. They did
so with deadly effect. He was professionally destroyed, his engagements were
cancelled and he could not gain employment in his field despite every effort on
his part.”9 In view of the deliberate and malicious character of the libel, the
court approved compensatory damages of $400,000 and punitive damages of
$150,000.10
The impact of blacklisting on the entertainment industry was particularly
severe.11 But the “poison” was not confined to any single group or industry. It
permeated both U.S. public and private sectors, leaving economic ruin and
personal tragedies in its wake.12
T H E O B J E C T I V E O F T H E L AW O F D E FA M AT I O N is to protect reputations against

derogatory falsehoods. The starting point is a recognition that humans cannot
live without interacting with one another. That interaction occurs in social
settings, in business relations, and in debates about collective decision making.
A derogatory falsehood may impair an individual’s ability to maintain or extend
social relationships, to obtain the job or credit or patronage necessary to eco-
nomic survival, or to influence cohorts to pursue—or not to pursue—a particu-
lar course of collective action. At the extreme, a defamed individual may be
ostracized by his or her social circle, deprived of economic opportunity, and
neutralized in debates about collective policies impinging on important per-
sonal interests.
As demonstrated by Rety and Faulk, an individual’s stake in reputation is
high. But what is less widely recognized is the social interest in protecting pri-
vate reputations. Defamation injures not only the defamed individual but oth-
ers as well—all who would have had social or business dealings with the victim
but cease to do so as a result of the falsehood. If, for example, John Brown is
wrongly accused of being a liar and a cheat, he may be discharged by his em-
ployer, shunned by his bridge club, and excluded from meetings of his neigh-
borhood association. But Brown must have been an effective employee, an
accomplished bridge player, and a contributor at neighborhood association
meetings; otherwise, he would not have been included in the first place. The
defamation, if accepted as true, may well deprive the employer of a valued
employee, the bridge club of an accomplished member, and the neighborhood
association of a worthy contributor to community dialogue.
More important, in a decentralized society dependent on the interaction of
multiple parties, reputation plays a key role in regulating individual behavior. In
their day-to-day activities, people do not focus inordinately on what the law
does or does not allow. The law may have nothing to say on the issue at hand.
Or it may expressly afford wide latitude. Or it may be beyond the comprehen-
sion of the ordinary person. But people do know what is expected of them. Social
norms govern a wide range of interactions among persons within a community.
Deviation from those norms is perilous.13 A merchant may be tardy in paying
bills, slipshod in making deliveries, or harsh in his treatment of employees.
Lawsuits are unlikely; indeed, no law need have been violated. But a reputation
for slow payment may impair credit, a reputation for poor deliveries may re-
duce patronage, and a reputation for mistreatment of personnel may impede
recruitment of new employees from the workforce.
The social interest in protecting reputation against unjustified attack is an
important means of avoiding the perils of anarchy at the one extreme and
oppressive government at the other. If a society cannot rely on reputational
concerns to maintain an acceptable level of conformity to prevailing social norms,
it has only two choices: to tolerate a disabling degree of disorder or to impose
stringent police measures. Some sense of the dilemma may be seen in the
problems posed by unruly young men in U.S. inner cities and elsewhere. Ab-
sent concern about their reputations in society at large, many disrupt schools,
defy the work ethic, reject parental responsibilities, and prey upon one another
and upon other members of society. What are the possible responses? In many
cases, the only available solution is incarceration. The United States has almost
2 million persons confined in penal institutions, most of them young males.14
The alternative to a society premised on conformity to social norms is one in
which government regulation and enforcement turn the society into one large
prison.
Reputation is not accorded explicit constitutional recognition.15 But the
protection of reputation against unjustified attack is integral to maintaining an
open and democratic society.16
“HEED THEIR RISING VOICES” 11
T W O
“HEED THEIR RISING VOICES”
O N M A R C H 29, 1960, T H E N E W Y O R K T I M E S carried a full-page adver-

tisement entitled “Heed Their Rising Voices.” The ad described the struggle of
thousands of southern Negro students to obtain recognition of their constitu-
tional rights and of the “wave of terror” with which they had been met. It was
signed by sixty-four persons—many of national stature—and endorsed by twenty
others, mostly clergymen in southern cities. The ad concluded with an appeal
for financial support for the civil-rights movement in the South.1
L. B. Sullivan was an elected official of the city of Montgomery, Alabama,
when the ad was published. He sued the New York Times and four of the ad’s
signatories for libel, claiming his reputation had been impugned by the ad and
by two excerpts in particular:
In Montgomery, Alabama, after students sang “My Country, ’Tis of Thee” on the
State Capitol steps, their leaders were expelled from school, and truckloads of police
armed with shotguns and tear-gas ringed the Alabama State College Campus. When
the entire student body protested to state authorities by refusing to re-register, their
dining hall was padlocked in an attempt to starve them into submission. . . .
Again and again the Southern violators have answered Dr. [Martin Luther]
King’s peaceful protests with intimidation and violence. They have bombed his
home almost killing his wife and child. They have assaulted his person. They have
arrested him seven times—for “speeding,” “loitering” and similar “offenses.” And
now they have charged him with “perjury”—a felony under which they could
imprison him for ten years.2
Sullivan, the elected commissioner in charge of the Montgomery police,
claimed the advertisement had defamed him, and he demanded a retraction.
The New York Times responded that it was “puzzled as to how you think the
statements in any way reflect on you” and asked Sullivan to explain the respects
in which the advertisement referred to him.3 Sullivan did not respond to the
request for further information. Instead, he instituted an action for libel in an
Alabama state court, claiming that—among other inaccuracies—the ad had
defamed him in falsely charging that the police had ringed the campus; in fact,
they had been deployed in strength near the campus on three occasions but had
never ringed it. He also pointed out that Dr. King had been arrested four times,
not seven as alleged, and that only one of those arrests had occurred during
Sullivan’s term of office. Further, Sullivan contended that the police—and therefore
he—had been subsumed under the heading “Southern violators” and had been
charged with complicity in the alleged bombing, assault, and perjury indict-
ment concerning Dr. King. In fact, neither he nor the police had been impli-
cated in any of these incidents.4
An Alabama jury concluded that the advertisement had falsely accused
Sullivan of misconduct, that the charge had been detrimental to Sullivan’s repu-
tation, and that the New York Times had acted maliciously in publishing an ad
that contained assertions contradicted by its own news reports of civil-rights
incidents in Montgomery. It awarded Sullivan $500,000 in compensatory and
punitive damages against the New York Times and the individual signatories.
The Alabama courts sustained the jury’s award as consistent with the state’s law
of libel.5
The United States Supreme Court reversed. In March 1964 the Court
ruled that a state may not apply its law of libel to penalize good faith criticism of
government policies or government officials. The Court relied primarily on the
history of the Sedition Act of 1798, a federal law that had made criminal the
utterance of “any false, scandalous and malicious writing or writings against the
government of the United States [or] Congress [or] the President.”6 Although
the act had never been tested in the Supreme Court, fines levied in its prosecu-
tion had been repaid by Act of Congress, and pardons had been issued to those
convicted and sentenced under the act—all on the ground that the act had been
unconstitutional, a judgment reflecting “a broad consensus that the Act, be-
cause of the restraint it imposed upon criticism of government and public
officials, was inconsistent with the First Amendment.”7 The Sedition Act ex-
pired by its terms in 1801 and was not reenacted.
The Court also relied on a privilege—recognized by a number of state
courts—protecting from libel laws those who act in good faith in criticizing
government policies and government officials, a view said to be favored by a
consensus of scholarly opinion.8
At the heart of the Court’s reasoning were two propositions—one about

the nature of free expression, the other about repression through self-censorship.
The Court began by pointing to the “national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open, and that
it may well include vehement, caustic, and sometimes unpleasantly sharp at-
tacks on government and public officials.”9 Further, constitutional protection
cannot turn on the truth of an assertion because “erroneous statement is inevi-
table in free debate, [and] must be protected if freedoms of expression are to
have the breathing space that they need . . . to survive.”10 Referring to the
writings of John Milton and John Stuart Mill, the Court observed that even a
false statement may make a valuable contribution to public debate by bringing
about “the clearer perception and livelier impression of truth, produced by its
collision with error.”11
On self-censorship the Court observed that the instant litigation was but one
of five libel suits brought against the New York Times in Alabama based on the one
advertisement; they sought damages aggregating $3 million. “Whether or not a
newspaper can survive a succession of such judgments, the pall of fear and
timidity imposed upon those who would give voice to public criticism is an
atmosphere in which the First Amendment freedoms cannot survive.”12 To be
sure, the Alabama courts recognized truth as a defense. But under that rule,
“would-be critics of official conduct may be deterred from voicing their criticism,
even though it is believed to be true and even though it is in fact true, because of
doubt whether it can be proved in court or fear of the expense of having to do
so.”13 Such a rule dampens the vigor and limits the variety of public debate in
contravention of the First Amendment. Accordingly, the Supreme Court pro-
mulgated a new rule of constitutional law that “prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct
unless he proves that the statement was made with ‘actual malice’—that is, with
knowledge that it was false or with reckless disregard of whether it was false or
not.”14 Further, a court must independently examine the whole record; liability
cannot be imposed absent proof of actual malice of convincing clarity.15 That
standard was not met in the case at hand. Accordingly, the Alabama judgment
was set aside as to both the New York Times and the individual signatories.
The Supreme Court also held that the state court determination was consti-
tutionally defective in another respect: the evidence was incapable of support-
ing the jury’s finding that the allegedly libelous statements were made “of and
concerning” Sullivan. The advertisement did not identify Sullivan by name or
position, and to allow him to sue would transmute “criticism of government,
however impersonal it may seem on its face, into personal criticism, and hence
potential libel, of the officials of whom the government is composed.” Such an

approach “may not constitutionally be utilized to establish that an otherwise
impersonal attack on governmental operations was a libel of an official respon-
sible for those operations.”16
The Court adverted to another, potentially less sweeping, basis for deci-
sion. Smith v. California,17 decided in 1959, concerned a bookseller convicted
for possessing obscene writings for sale. The Supreme Court there held that it
was essential to a valid conviction that the bookseller be shown to have had
guilty knowledge of the obscene contents of the books he had sold. Absent such
a showing, a bookseller would tend to restrict the books he sold to those he had
inspected. This would impede the sale of books and the public’s access to read-
ing matter, a burden that would apply not only to obscene materials but also to
other books excluded by the bookseller’s timidity and self-censorship.18 In the
Alabama litigation, in its discussion of inadequacies in the proof of actual mal-
ice on the part of the New York Times, the Supreme Court observed that the
Times’s advertising manager had testified that he had approved the advertise-
ment for publication because he had known nothing to cause him to believe
anything in the ad was false and because the ad had borne the endorsement of a
number of well-known persons. He had made no effort to confirm the accuracy
of the advertisement, either by checking against recent New York Times news
stories or by any other means.19 Although the Court in the New York Times case
relied on Smith in affirming the need to show culpable knowledge in the form of
“actual malice,” it did not confine its ruling to cases like Smith—cases in which
advertisements were accepted by a publisher ignorant of their defamatory con-
tent. The decision applied to all published utterances.
In overturning the state court judgment against the New York Times and the
individual signatories, the Supreme Court struck out in a new direction. Previ-
ous statements by the Court, reiterated in seven opinions over thirty years,20
had found no First Amendment impediment to imposition of civil liability for
libel. The Court might have premised its decision on either of two relatively
narrow grounds recognized in its opinion: that impersonal criticisms of govern-
ment cannot be challenged as libelous because they are not “of and concerning”
individual government officials; or that intermediaries, such as booksellers and
publishers of ads, cannot be held accountable for aspects of writings about
which they lack culpable knowledge. Although both views were adopted, the
Court went further and ruled that public officials may not sue for libel absent
clear and convincing proof of actual malice—that is, that the publisher knew
the libelous statement was false or acted with reckless disregard of whether it
was true or false. The Court’s ruling was wide-ranging in its scope.
The Court could have gone further. As urged by three concurring justices,
the Court could have accorded complete immunity to criticisms of government
officials.21 Professor Herbert Wechsler of Columbia Law School, counsel for
the New York Times, had sought such a ruling. But the Court declined to afford
a blanket exemption for statements that were harmful to reputation and known
by the publisher to be without foundation in fact.
O N E M O N T H A F T E R T H E D E C I S I O N I N N E W Y O R K T I M E S , the Supreme
Court addressed additional aspects of the defamation question in a case coming
to the Court from Louisiana. Jim Garrison was the district attorney of Orleans
Parish. During a press conference in 1962, Garrison attacked the eight judges
of the Criminal District Court of the parish, attributing a large backlog of
pending criminal cases to the judges’ inefficiency, laziness, and excessive vaca-
tions; he also accused them of hampering his efforts to enforce vice laws in
New Orleans by refusing to authorize disbursements to support undercover
investigations of vice. Their refusal, he said, raised “interesting questions about
the racketeer influences on our eight vacation-minded judges.”22
Garrison was tried and convicted of violating the state’s criminal libel stat-
ute. His remarks were held to impugn the personal integrity of the eight judges.
As such, they were actionable under Louisiana law—even absent a showing of
falsity—if motivated by ill will, enmity, or a wanton desire to injure. The trial
court had found that Garrison harbored hostile feelings toward the eight judges
growing out of a prior dispute with them. It had also found that Garrison’s
statements were false and were not made in the reasonable belief that they were
true: “It is inconceivable to me that the Defendant could have had a reasonable
belief, which could be defined as an honest belief, that not one but all eight of
these Judges . . . were guilty of what he charged them with in the defamatory
statement.”23
The Supreme Court reversed. It ruled, first, that prosecutions for criminal
libel were subject to the same actual malice requirement as civil actions for
defamation.24 Second, it ruled that true statements cannot be penalized what-
ever the motivation of the speaker:
Debate on public issues will not be uninhibited if the speaker must run the risk
that it will be proved in court that he spoke out of hatred; even if he did speak out
of hatred, utterances honestly believed contribute to the free interchange of ideas
and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a
finding of malice based on an intent merely to inflict harm, rather than an intent
to inflict harm through falsehood, it becomes a hazardous matter to speak out
against a popular politician, with the result that the dishonest and incompetent
will be shielded. . . . Moreover, in the case of charges against a popular political
figure . . . it may be almost impossible to show freedom from ill-will or selfish
motives.25
Third, the criticisms at issue in this case were held to come within the
scope of New York Times because they concerned the manner in which the eight
judges conducted the business of the Criminal District Court. That the judges’
personal reputations also were impugned was not controlling; New York Times
applied to any allegation that “might touch on an official’s fitness for office. . . .
Few personal attributes are more germane to fitness for office than dishonesty,
malfeasance, or improper motivation, even though these characteristics may
also affect the official’s private character.”26
Finally, the Court ruled that liability in this case could not be sustained
under the actual malice standard even though the trial judge had found that
Garrison could not have entertained a reasonable belief that his accusations
were true. Reckless disregard for the truth encompasses “only those false state-
ments made with [a] high degree of awareness of their probable falsity.” In this
case the trial judge required a reasonable belief—one for which an ordinary
prudent man might be able to assign a just and fair reason. But the test of New
York Times “is not keyed to ordinary care; defeasance of the privilege is condi-
tioned, not on mere negligence but on reckless disregard for the truth.”27
The Court also reaffirmed its refusal in New York Times to afford immunity
to deliberate or reckless falsehoods:
Although honest utterance, even if inaccurate, may further the fruitful exercise of
the right to free speech . . . the use of the known lie [is] at odds with the premises
of democratic government and with the orderly manner in which economic, social,
or political change is to be effected. [There are] those unscrupulous enough to use
the deliberate or reckless falsehood as an effective political tool to unseat the public
servant or even topple an administration.28
As in New York Times, three justices concurred in the result, preferring a rule of
complete immunity for public discussion and criticism of public officials.29
I N I T S D E C I S I O N S I N N E W Y O R K T I M E S A N D G A R R I S O N , the Supreme
Court revolutionized the law of defamation, setting in motion forces that would
effect dramatic alterations in the governing legal regime. No significant atten-
tion will be given here to criminal libel, which had fallen to near desuetude
long before Garrison. It is critical, however, to look more closely at the remain-
ing protagonists in the unfolding drama: the concern of the common law with
protecting reputation against harmful and unjustified disparagement and the

concern of the Constitution in advancing the expressive values embodied in
the First Amendment.
T H R E E
AN UNCOMMON COMMON LAW
STUDENTS OF PRIMITIVE SOCIETY have traced the inception of law to the

blood feud:
A member of Family A kills a member of Family B. In a primitive society the
natural response is for the members of Family B to seek revenge on Family A. If no
limits are set to this revenge, there may ensue a war to the death between the two
families. There has, accordingly, grown up in many primitive societies a rule that
blood revenge on the part of Family B must, in the case supposed, be limited to
one killing, though the injured family is regarded as being entitled as of right to
this degree of counterkill. A later development will normally prohibit blood
revenge and require compensation in the form of “blood money” for the life of the
man whose life was taken. Here, plainly, the law of murder serves . . . to facilitate
human interaction on a level more profitable for all concerned than killing and
counterkillings.1
Although the law has progressed significantly beyond its primitive origins, hu-
man nature has not. The legendary Hatfields and McCoys carried a blood feud
to the point of virtual annihilation of both clans. “Ethnic cleansing” in the
former Yugoslavia and elsewhere has carried killing and counterkilling to mon-
strous lengths. But the social order seeks to constrain violence through the rule
of law.
The common law, developed by English courts over the course of centu-
ries, provides a distinctive response to the problem of affording a peaceful
resolution of disputes between individual citizens. Instead of waiting for the
convocation of a constitutional assembly or an enactment by a legislature or
A N U N C O M M O N C O M M O N L AW 19
other ruling authority, common law judges provided a remedy for well-grounded
grievances regardless of whether a basis existed in any laws formally enacted.
Litigants were given an opportunity to resolve controversies that might never
have attracted the attention of the public or its elected representatives.
An example is the 1897 English decision in Wilkonson v. Downton.2 Tho-
mas Wilkonson had gone to attend a race meeting. In the afternoon, Mr. Downton
informed Mrs. Wilkonson that her husband had been injured in an accident on
his way home, breaking both his legs. Mrs. Wilkonson hastened to the scene,
only to find that the report had been a hoax. She experienced a severe shock to
her nervous system and became seriously ill, sustaining permanent physical
harm. The Court of Queen’s Bench awarded damages to Mrs. Wilkonson to
compensate her for the harm inflicted, emphasizing the willful nature of
Downton’s prank. The court was not deterred by the absence of any prior law
bearing on the matter at hand. It was enough that Downton, acting without
justification, had inflicted a severe injury on Mrs. Wilkonson.
The evolution of the law of defamation is more complex, with numerous
intricacies along the way, but the central thrust is the same. The common law
courts, in an effort to provide redress for unjustified harm, entertained actions
and awarded compensation when merited by the harm inflicted.3 The common
law of England has provided the premise for judge-made law in the United
States and in nations around the globe, including Canada, Australia, New
Zealand, and India.
A S TAT E M E N T I S D E FA M AT O R Y if it “tends so to harm the reputation of another

as to lower him in the estimation of the community or to deter third persons
from associating or dealing with him.”4 Stated another way, a statement is
defamatory if it “exposes a person to hatred, contempt, ridicule, or obloquy, or
. . . causes him to be shunned or avoided, or . . . has a tendency to injure him
in his occupation.”5 At the core is concern about the impairment of an individual’s
ability to maintain his or her standing in the community and to maintain rela-
tionships with others essential to social living and economic success. Since the
concern is with relationships, a derogatory statement must be communicated to
third persons. It is not enough that a person is denounced to her face; if the
denunciation is not communicated to third persons, it is not an actionable
defamation.6
An actionable defamation also must convey an assertion of fact, express or
implied. Derogatory opinions are not subject to challenge under the law of
defamation. A person is allowed to communicate his view that another is a
“fascist” or a “bastard” or otherwise contemptible.7 As long as the statement is

lacking in factual content so it cannot be proved to be true or false, it is beyond
the reach of the law of defamation.8
An adverse opinion may prove harmful to reputation if, for example, the
spokesperson is socially prominent or is a recognized authority in a particular
field of endeavor. But the law of defamation is intended to reach falsehoods, not
derogatory opinions. If a statement cannot be proved to be false, it cannot be a
falsehood. To extend the law of defamation to negative opinions would repress
the assertion of individual points of view, a degree of government control long
rejected as unduly oppressive. In general, reputations are effectively protected
against unjustified attack if false factual assertions are actionable. (In some
instances an opinion may imply a factual predicate; if it does and the factual
predicate is false, the statement is a falsehood and an action for defamation may
be brought.9 This point is developed in further detail in Chapter 17.)
Another limitation on the law of defamation is the requirement that the
falsehood be “of and concerning” the plaintiff.10 If the plaintiff is not identifi-
able as the object of the falsehood, her reputation cannot be impaired. Similarly, if
the statement is directed at a large and amorphous group—“all politicians are
crooks”—no individual member of the group may sue.11 Nor may the group.12
The charge is too diffuse to impair the reputation of any individual. (For addi-
tional examples, see Chapter 15.)
If the requirements of an actionable defamation are met, the law has tradi-
tionally afforded a generous remedy. If a plaintiff establishes (1) that a statement
is defamatory, (2) that it has been communicated to third persons, (3) that it
conveys a factual message susceptible of being proved true or false, and (4) that
it is “of and concerning” the plaintiff, the law will presume damages in most
circumstances. If the utterance is conveyed in writing or is transmitted by the
mass media in any form, it is libel and damages are presumed.13 If the utterance
charges commission of a crime, infection with a loathsome disease, serious
sexual misconduct, or facts injurious to plaintiff in his trade or business, the
statement—even if communicated orally and privately—is slander per se; again,
damages are presumed.14 Oral comments not within the foregoing categories
are nonetheless slander if they are defamatory, but in this instance damages are
not presumed and plaintiff must show “special damages”—that is, pecuniary
losses directly traceable to the defamatory utterance.15
The willingness of the courts to presume damages in cases of libel and
slander per se is premised on the probability that such utterances will impair
reputation in a wide array of cases, yet the victim will frequently encounter
difficulty in proving an injurious impairment of reputation. If a person is ma-
ligned, he cannot know what the impact will be. In the short or the long run,
social relations may be severed or economic opportunities lost. But causation is
hard to prove. If social invitations are declined or if customers cease to come,
the maligned individual is rarely in a position to inquire into the absentees’
motives; if inquiry is made, the victim of the defamation cannot compel honest
answers. In practice, the presumption of damages empowers juries to assess the
probable seriousness of the derogatory falsehood, subject to judicial supervi-
sion. In egregious cases, punitive damages also may be assessed.16
At common law, liability for defamation was “strict.” If the four require-
ments were met—defamatory meaning, communication to a third person, factual
content, and sufficient identification of plaintiff—it was not necessary to show
intentional fabrication or negligent utterance. An innocent mistake sufficed to
support liability.17 This rule of strict liability is consistent with modern ap-
proaches to civil liability in other areas of the law having similar characteristics.
In the typical case involving a defamatory falsehood, the timing and content of
the challenged statement are within the exclusive control of the party making
the utterance. He can take more or fewer precautions to ensure that the state-
ment, if it is factual and if it refers to an identifiable person, is either accurate
or nondefamatory. If he is uncertain on either count, he can weigh the advan-
tages of publication against the risks of a defamation challenge and proceed to
publish if the assessment is favorable and desist if it is not. The injured party
plays no role in the decision to publish; the publisher is the only party posi-
tioned to evaluate costs and benefits. Strict liability provides publishers with an
appropriate incentive to correctly assess the benefits and detriments associated
with a defamatory utterance.18
At common law, truth was a defense. But the burden was on the defendant
to prove truth rather than on the plaintiff to prove falsity.19 Again, the place-
ment of the burden seems appropriate. The publisher, aware that a defamatory
utterance may be challenged, can assess whether it has sufficient factual support
for its allegation. The victim has no knowledge of the publisher’s fact-gathering
processes, and, given the typically broad scope of the reporter’s privilege to
protect her sources, the victim may have difficulty obtaining relevant informa-
tion even in the course of discovery during litigation. If a reputation is to be
sullied, the publisher is in the best position to set forth the factual predicate for
the defamation. If the charge is vague—for example, that plaintiff has links to
organized crime—plaintiff may have no idea as to the basis for the charge and
may face substantial impediments in seeking to establish falsity.
Finally, the common law recognized an array of privileges. Some were
“absolute,” providing complete protection for otherwise actionable defamations.20
Others were “qualified,” affording protection in certain contexts if defendant

acted with circumspection in seeking to protect a legitimate interest.21 The
impact of privilege was to provide complete immunity in the first class of cases
and to require some measure of fault in the second. Some of the more signifi-
cant privileges are discussed in succeeding chapters.22
OTHER CIVIL ACTIONS

A number of other civil actions, fashioned by the common law courts, supple-
ment the action for defamation. Four are of significance and can be briefly
summarized.
Product Disparagement
Product disparagement, originating as slander of title and now subsumed
under the general rubric of injurious falsehood, is concerned with attacks on
property rather than attacks on a person. The classic cases are ones in which
defendant disputes plaintiff ’s title to land or misrepresents the qualities of
plaintiff ’s products.23 If the disparagement impugns plaintiff ’s personal reputa-
tion for honesty, competence, or fair dealing, plaintiff can assert a claim for
defamation. But if the disparagement does not go beyond the property or prod-
uct—alleging, for example, that an automobile does not hold the road well at
speeds in excess of sixty miles per hour—the sole cause of action is for product
disparagement.
The necessary elements of a product disparagement claim are similar to
those applicable to defamation: publication to third persons, reference to
plaintiff ’s property or product, and derogatory meaning. But in this instance
plaintiff also must prove falsity, actual pecuniary harm, and some degree of fault
(variously defined in the common law cases).24 No presumption is made that
the statement is untrue or that harm will follow in its wake. Liability is not
strict.
Clearly, a plaintiff would prefer to sue in defamation if such a claim is
viable, since a product disparagement action requires important additional ele-
ments of proof. Apart from this higher threshold, which may or may not be
justified, the two actions are similar. To be sure, the harm from product dispar-
agement is confined to economic loss, whereas defamation is concerned with
attacks on the psyche as well. In most cases defamation triggers emotional
reactions not normally present in a product disparagement case. On the other
hand, the losses needed to sustain a product disparagement claim are typically
more palpable and more easily quantifiable than the harms associated with
verbal attacks on personal or general reputation. For present purposes, no dis-
tinction between the two actions is necessary. Product disparagement cases,

relatively few in number, will be considered jointly with traditional actions for
defamation in succeeding discussions. The courts have not made significant
distinctions between the two in rulings invoking the First Amendment’s consti-
tutional privilege.25
Intentional Infliction of Emotional Distress

This action does not require a communication to third persons—although
a communication may occur in a particular case, causing or aggravating the
emotional distress that is at the heart of this action. Liability is imposed on one
“who by extreme and outrageous conduct intentionally or recklessly causes se-
vere emotional distress to another”; liability extends to bodily harm resulting
from the distress.26
If emotional distress is inflicted by defamation, redress may be sought
under that theory. It provides a more certain basis for recovery because it does
not require “extreme or outrageous conduct” and does not normally require
intentional or reckless misconduct. But there are cases in which emotional
distress is inflicted without uttering falsehoods—for example, threats of vio-
lence or of other harm27 or racial slurs or other hostile or abusive language not
factual in character.28 Wilkonson v. Downton, discussed at the outset of this
chapter, is another example.29 Further, the harm to the psyche may be inflicted
without communicating a message to third persons, as in hate mail or in threats
or abuses uttered in private face-to-face confrontations.30 All of these are candi-
dates for liability for intentional infliction of emotional distress. None would
qualify as defamation.
To the extent that intentional infliction of emotional distress is accom-
plished by utterances that are defamatory or otherwise injurious to reputation
or standing in the community, constitutional privilege applies, and nothing is
gained by relabeling the cause of action.31 But in other instances, constitutional
questions are raised distinct from the concept of constitutional privilege as it
has developed in the context of defamation. These questions will be pursued as
they arise.
Interference with Contract or Business Advantage

Unlawful interference with contract or with prospective business advantage
is frequently alleged concurrently with a product disparagement claim or a defa-
mation claim affecting a commercial relationship. Plaintiff must show (1) that it
had a valid contract or a reasonable expectation of a valid business relationship,
(2) that defendant knew or should have known of the contract or the business
expectancy, (3) that defendant acted deliberately to induce breach of the con-
tract or disruption of the expected relationship, and (4) that plaintiff sustained
damages as a result.32 In some instances an actionable interference may be
accomplished by communicating falsehoods to a business rival’s customers. For
example, Firm A might tell the customers of Firm B that Firm B is misrepre-
senting the quality of its products or that it will file for bankruptcy in the near
future to evade its warranty obligations. Firm B could sue for defamation, for
disparagement of its products, or for interference with its economic relations
with its customers (or for all three alleged transgressions). For present purposes,
the nature of the claim asserted by Firm B is irrelevant. If the falsity of Firm A’s
assertions is at issue—and on these assumed facts falsity is the key issue under
each of the three theories of liability—the interference action is subject to
constitutional privilege in the same manner and to the same extent as product
disparagement and defamation.33 No distinctive constitutional issues are posed.
Invasion of Privacy
The right to privacy has several distinct aspects. For present purposes,
attention will be confined to “false light privacy.” A person who provides public-
ity about another that places the other in a false light is liable for invasion of
privacy if that false light “would be highly offensive to a reasonable person.”34
False light privacy closely resembles defamation with one important differ-
ence: in this case the linchpin of liability is the offensiveness of the falsehood
rather than its defamatory content. Thus a person who finds that his name has
been signed to a public petition without his consent need not prove that this act
held him up to public contempt or ridicule or otherwise interfered with his
relationships with others. It is enough that a reasonable person would be highly
offended that a public position has been attributed to him without his consent.
The New York Times standard of culpability (“actual malice”) applies here as well
as in the case of defamation in essentially the same manner. More cases of this
character are discussed in Chapter 21.
Other aspects of the right of privacy will be discussed in Chapters 27–34.
THE FIRST AMENDMENT 25
F O U R
THE FIRST AMENDMENT
T H E F I R S T A M E N D M E N T T O T H E U . S . C O N S T I T U T I O N provides: “Con-
gress shall make no law . . . abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the government
for a redress of grievances.”1 On its face, the amendment applies only to the
U.S. Congress. But the Supreme Court has interpreted the amendment to apply
to all branches of the federal government.2 The expressive liberties guaranteed
by the First Amendment also have been protected against incursions by the
states. The governing provision is the Fourteenth Amendment: “nor shall any
State deprive any person of life, liberty or property, without due process of
law.”3 Again, a broadly inclusive Supreme Court interpretation is the basis for
subjecting the states to the terms of the First Amendment.4
Although the scope of the First Amendment has been broadened by these
expansive interpretations, its terms have been qualified by other judicial rulings.
Some qualification is essential to maintain a safe and sane society. Many common-
place crimes—fraud, extortion, perjury—are committed by words. Numerous
private wrongs, including defamation, are committed by words.5 (It is difficult to
imagine that the hurtful message to Mrs. Wilkonson, falsely reporting an injury to
her husband, warrants First Amendment protection; see Chapter 3.) Finally,
the peaceful ordering of society requires regulatory limitations on parades that
block traffic, sound trucks that afflict eardrums, false alarms that misdirect
firetrucks, and billboards that mar views of the countryside. No modern society
could afford to allow every utterance complete immunity from government
control. No social structure has ever sanctioned such a chaotic state of affairs.
Yet the First Amendment means something, and that something is highly
important. Here as elsewhere, the meaning must be ascertained from the pur-
poses to be served.
F R E E D O M O F E X P R E S S I O N I S C O M M O N L Y V I E W E D as advancing four inter-

ests: (1) vindication of individual autonomy, (2) protection against abuses of
government authority, (3) facilitation of the institutions of self-government, and
(4) ascertainment of truth. All four are important. But not all are affected in the
same manner or to the same degree by the law of defamation.
INDIVIDUAL AUTONOMY
Individuals express themselves in many different ways. Speech and other sym-
bolic communications are particularly important modes of expression.6 But the
law of defamation does not detract unreasonably from the realization of human
autonomy.
First, the universe of symbolic expression is infinite. No matter how many
expressions are enumerated, it is always possible to imagine new and different
statements. The law of defamation intrudes on but a minor corner of this uni-
verse. Given the limits on actionable defamation, inroads on individual expres-
sive interests are minimal. As long as no falsehoods are uttered, a spokesperson
is free to heap scorn on any person or group. The protection of derogatory
opinions affords broad scope to individual expressive values. Truth is always a
defense.
Second, the limit imposed by defamation is a reasonable one, consistent
with other limits on individual autonomy. A musician may need a violin to
express herself; an artist may require paint and brushes. But neither the musi-
cian nor the artist can simply appropriate the property of others to advance an
expressive objective. Similarly, expressions may involve assaults or inflictions
of physical harms on others, but the law intervenes in such cases no matter how
deeply held the convictions leading to such aggressive physical behavior. In
brief, the autonomy of one person cannot be exercised beyond boundaries
designed to protect the autonomy of others—the owners of the violin and art
supplies, the victims of assault. So, too, in the case of defamation. To allow unfet-
tered exercise of autonomy by the speaker of defamatory falsehoods is to impair
the autonomy of the victims—their interest in maintaining social and economic
and political relationships essential to pursuit of their individual objectives.
Nor does the interest of recipients of defamatory utterances alter the equa-
tion. Listeners, readers, and viewers are in the same position as the prospective
recipients of paintings and music created by felonious artists and musicians.

The flow of available information is not unduly impeded by imposing liability
for defamation.
Individual autonomy may be a sound basis for protecting expression against
an orthodoxy the state seeks to impose in censoring disfavored expressions and
also for according wide latitude for personal opinions. But it is not a sound
basis for challenging the interdiction of defamatory falsehoods.
ABUSES OF GOVERNMENT AUTHORITY

The authority of the state is extensive and is subject to serious abuse. It has a
virtual monopoly on the lawful use of force, and it can use that power for
illegitimate ends—to oppress the population it is intended to serve. Unbridled
governmental authority can inflict enormous harm on huge numbers of people,
as both ancient and modern history has shown—from the Egypt of the Pha-
raohs to the Nazi regime of terror in Europe. The First Amendment was in-
tended as a bulwark against predatory government, perhaps its most important
role. Free speech and free press are important guarantors of responsible and
responsive government.7
In this context the law of defamation poses a serious hazard. If criticisms of
government can be silenced by the threat of defamation lawsuits, the salutary
role of the First Amendment is frustrated. A government free from criticism is
a dangerous government. And in this context defamatory utterances are un-
avoidable. If a regime is brutal or corrupt or incompetent, criticisms cannot be
voiced in abstract terms. The brutality or corruption or incompetence must be
disclosed with specificity. Some identification is essential to expose the cul-
pable parties. To allow those parties to sue for defamation on the usual terms—
imposing presumed damages premised on strict liability—is to give them a
powerful weapon to suppress exposure and correction. If effective discussion of
government misconduct is stifled, the First Amendment no longer serves its
intended purpose of protecting the populace from the state.
In cases involving potential abuses of government authority, some accom-
modation is required between the law of defamation and the demands of the
First Amendment. The defense of truth is valuable, but it may not suffice. First,
the agency that determines truth may be an arm of the government subject to
attack, or politically aligned with that government, and thus disinclined to reach
a dispassionate verdict.
Second, the publisher in this instance is not in a position to make an
appropriate comparison of costs and benefits. If the publisher is right and is
adjudged to be right, it will reap some gain in the marketing of its product if it
is a media enterprise. But the principal beneficiary is the community at large,

protected against the brutality or corruption or incompetence of the state. As a
practical business matter, the commercial publisher cannot extract from the
public the full benefit of its disclosures. If, on the other hand, the publisher is
wrong or is adjudged to be wrong, it must bear the total costs associated with an
adverse defamation award; the community will not come forward to help defray
the judgment. In either case the publisher must bear the substantial costs asso-
ciated with defamation litigation. Accordingly, a publisher will be reticent to
publish even where apparent social gains outweigh apparent social costs; it
bears all of the financial costs in all of these cases but realizes only a fraction of
the gains. Noncommercial publishers, including private persons, would be even
more hesitant, having no tangible gains to weigh against substantial prospective
losses.
Not surprisingly, the impetus for imposing limits on defamation recoveries
is found in cases, such as New York Times Co. v. Sullivan, in which criticism of
the government is at issue.
FACILITATING SELF-GOVERNMENT
Under a system of representative government, the public is the ultimate arbiter
of social policy. Admittedly, the translation of public sentiments into public
measures is beset by difficulties. Some are seemingly insoluble problems illumi-
nated by “public choice” theory: a collection of individuals rarely reaches a
consensus on any issue; short of a consensus, it may be impossible to say that a
decision made by a group reflects the sentiments of that group or even of a major-
ity of the group; too much depends on the order in which issues are presented
and the manner in which the agenda for decision making is managed.
Even so, there is little doubt that a group of informed members can more
nearly capture the shared purposes of the group than an association composed
of members who are influenced by misinformation or who have no informa-
tion.8 The possibility of consensus may be masked by falsehoods and ignorance;
opportunities may be missed to engage in collective actions that properly in-
formed members of the group would embrace. Of course, the contrary is also a
possibility. Massive ignorance may provide a basis for consensus—to burn witches
at the stake or to relegate minorities or women to inferior roles in society—but
collective decisions based on bad information are likely to be bad decisions.
The objective of informing the public to facilitate institutions of self-
government is closely related to the objective of curbing abuses of government
authority. But the two are not coterminous. Even in authoritarian regimes,
exposure of official misconduct may serve as a restraint—however imperfect—
on abuses of authority. For one thing, extensive criticism may undermine the
power and effectiveness of the regime; tyrants, no matter how secure in their
hold, almost invariably seek to suppress criticism. But another restraining influ-
ence, perhaps more significant, is the authority’s concern with its image. In the
United States, for example, many institutions are governed by self-perpetuating
oligarchies with minimal accountability to the public at large: the boards of
trustees of most private universities; the faculties of most universities, public
and private; managements of private charitable organizations such as the Ford
Foundation; hierarchies of some religious institutions such as the Roman Catholic
Church. All are important in our society; none is accountable in any meaning-
ful manner to the public at large; yet all seek to preserve images of competence,
honesty, and dedication to high ideals.
The opposite is also true: an informed public may be critically important in
matters of self-government even when abuses of governmental authority are
absent. The history of famines is marked by abuses of governmental authority
in the conventional sense. But that history also includes instances of inaction
resulting from inadequate information. Some scholars have asserted that fam-
ines, although sometimes triggered by natural disasters or disorganized econo-
mies, are ultimately traceable—every one of them—to regimes that failed to
take measures that were available at the time and that would have avoided the
tragedies. No famine has occurred, they contend, in a society in which free
speech and free press ensured dissemination of pertinent information.9
The same story can be told in many other areas. Governmental abuses
occurred in race relations, in the subjugation of women, and in the degradation
of the environment. But these were symptoms rather than causes. The underly-
ing evils were often perpetrated by private parties. Progress was not achieved
until the public at large became aware of the significance of the underlying
problems and was persuaded to insist upon corrective measures by govern-
ments and others.
In short, the protection of free expression is vital to the advancement of
public policy across the whole spectrum of public issues regardless of whether
abuses by government are implicated. To this end, some latitude for defamatory
utterances is essential. The government is not invariably implicated in every act
of discrimination by persons having economic influence or in every hazard to
public health or safety or in every assault on the environment. New problems
may require new initiatives not yet reflected in any public agenda. The press
and the public at large must not be inhibited, by fear of liability for defamation,
from pointing the finger at private persons and private organizations respon-
sible for inflicting public harms. Corrective measures may be of the utmost
importance even in instances in which no government official is chargeable

with abuse of authority.
The reasoning supporting a measure of latitude for criticisms of this char-
acter is substantially the same as that applicable to abuses of government au-
thority: the spokesperson faces a risk of personal loss disproportionate to per-
sonal gain and accordingly may elect not to speak even when the social gain is
high and the risk of harm from defamation is small in comparison. Perhaps
abuses of government authority pose a more acute and pressing problem than
discussion of public issues generally. But not necessarily. Indifference on the
part of government or the public at large may be a greater menace in some
instances than official malfeasance.
ASCERTAINMENT OF TRUTH
The ascertainment of truth is of obvious importance both in arriving at collec-
tive decisions and in enhancing individual knowledge and understanding.10 For
the most part, however, the law of defamation is unrelated to the search for truth.
Putting to one side the problems of the predatory state and of self-government,
most discussions about truth or falsity can proceed without defaming identifi-
able individuals. Modern scientific methods ascertain truth by looking to aggre-
gates—disease among the population of cigarette smokers versus disease among
the population of nonsmokers. The incidence of disease among smokers also
might be shown by anecdotal evidence, but anecdotes may be contradicted by
counterexamples and are generally regarded as an unsatisfactory basis for ascer-
taining truth. This is not to say that anecdotal evidence is without value. Individual
experiences may highlight the need for further inquiry, suggest the variables
that may be significant in a larger study, and illustrate the impact of the aggre-
gate data in concrete cases. Even here, however, if the discrete data are defam-
atory in character, the point can often be made without identifying an offending
party with the particularity implicit in the “of and concerning” requirement of
the law of defamation.
But sometimes important truths can be disclosed only by statements that
defame identifiable individuals. Consumer reporting is a prime example. If a
product or procedure is unsafe or ineffective or otherwise inappropriate, the
point cannot be made by discussing the issue in the abstract or by looking to
aggregate data. The important truth is that Doctor X maims his patients or that
Company Y sells contaminated food. Disclosures of this kind are actionable
defamations if they are false, but they are socially valuable if they are true. Even
in the realm of science, defamation may be unavoidable in exposing fraudulent
findings or incompetent research techniques.
Further, falsehoods are an integral part of the search for truth. Error plays
a role in illuminating the truth. For example, the contemporaneous airing of
cigarette commercials and antismoking messages proved more effective in
bringing home the harms of smoking than antismoking messages standing
alone.
Again, an accommodation seems necessary. The defense of truth may be
more valuable in this context because there is no basis a priori for assuming
that the tribunal will be biased in favor of the plaintiff. And the publisher may
have better access to the data needed to substantiate a charge of wrongdoing by
a private plaintiff than in instances in which it seeks to expose wrongdoing by
government. But the publisher faces a problem in this case similar to the one
confronted in the context of criticism on public issues. It cannot recoup the full
benefit of a truthful and helpful communication—one that protects the lives,
health, or property of consumers or the integrity of scientific findings—but it
must bear the full cost of an adverse defamation judgment; and, win or lose, it
must bear the substantial costs associated with defamation litigation. The pub-
lic shares in the benefits of truth but not in the costs of falsehood.
An accommodation appears necessary here, as in the case of reporting
about government abuses and issues of self-government. But it does not follow
that the same accommodation is required in each instance. Further elucidation
on this point is provided in subsequent chapters.
OTHER FREE SPEECH JUSTIFICATIONS

Other rationales have been advanced for protecting free speech. They are noted
briefly, not because they are unimportant or lacking in merit but because they
add little to the foregoing analysis.11
An important justification for free speech is its capacity to contribute to
the accommodation of conflicting interests and, accordingly, to social stability.
Only if interests are known and understood and conflicts are exposed to public
view is it possible to search meaningfully for means of reconciliation. The kinds
of issues posed in this context are likely to mirror those associated with self-
government. It is difficult to imagine an expression, defamatory or not, that
would be relevant to accommodation of conflicting interests but irrelevant to
issues of self-government.
Free speech is also said to promote tolerance, essentially for the reasons
given in connection with interest accommodation: to know and understand the
grievances of minorities—racial or religious or economic—is to facilitate an
accommodation respectful of appropriate minority concerns. Again, it is diffi-
cult to think of defamatory utterances promotive of tolerance that would
not be germane to issues of self-government. Indeed, defamatory utterances

disrespectful of minorities are likely to impede interest accommodation and
social stability.
Sometimes free speech is defended on nonconsequentialist grounds associ-
ated with liberal philosophy: the government as a product of a social contract
among the governed, or the liberal demand for equality in respecting the dignity
of individuals. The former obviously calls not simply for consent but for informa-
tion on which to base consent. The latter calls for opportunities for individuals to
express themselves and to have access to the expressions of others. Neither
provides incremental insight in responding to the problem at hand. A govern-
ment with the informed consent of the governed is one in which the institutions
of self-government are facilitated by the kinds of free expression discussed in
connection with self-government. Calls for equality and dignity are reflected in
the discussion of individual autonomy; free expression should be respected, but
not beyond the point at which the equality and dignity of others are impaired by
derogatory falsehoods.
CONSTITUTIONAL PRIVILEGE
Before considering specific applications of constitutional privilege in the chap-
ters ahead, it may be useful to summarize the main features of the structure of
that privilege as it applies in a defamation action.
First, if the plaintiff is a “public official” or a “public figure” and the alleged
defamation is germane to plaintiff ’s position, plaintiff must show by evidence
of convincing clarity that the publisher acted with actual malice—that is, the
publisher either knew the statement was false or made the statement without
regard to whether it was true or false (see Chapters 2, 5–13, and 22).
Second, if the plaintiff is a “private figure” defamed in a discussion of an
issue of public concern, plaintiff must show fault on the part of the publisher
(that is, some degree of negligence); further, plaintiff ’s recovery is limited to
actual damages sustained, financial and emotional. (Damages are not presumed.
But presumed and punitive damages are available if plaintiff can show actual
malice.) (See Chapters 9 and 13.)
In both of these cases, plaintiff must establish the falsity of the defamatory
utterance; defendant no longer has the burden of proving truth (see Chapters 18
and 19).
Third, if plaintiff is a “private figure” defamed by comments not made in
connection with a discussion of an issue of public concern (for example, a
statement made in a credit report, in a job recommendation, or in the course of
ordinary gossipmongering), constitutional privilege is inapplicable, and its rules
pertaining to fault, to measure of damages, and to proof of falsity are inappli-

cable (see Chapter 14).
Finally, the Supreme Court has elevated to constitutional status the com-
mon law requirement that a defamatory statement be “of and concerning” the
plaintiff and also the common law exclusion of opinion from the reach of defa-
mation liability (see Chapters 15 and 17). It is unclear whether these inhibi-
tions apply to defamation cases that concern neither public persons nor public
issues; but with respect to these issues, state law and constitutional precept do
not diverge significantly.
We turn now to the development and application of constitutional privilege
in particular circumstances.
P A R T T W O
PUBLIC OFFICIALS,
PUBLIC FIGURES,
AND PRIVATE PERSONS
36 P U B L I C O F F I C I A L S , P U B L I C F I G U R E S , A N D P R I VAT E P E R S O N S
A N Y T H I N G T H AT T O U C H E S ON FITNESS FOR OFFICE 37
F I V E
ANYTHING THAT TOUCHES

ON FITNESS FOR OFFICE
I N T H E 1960 N E W H A M P S H I R E P R I M A R Y , Alphonse Roy was a candidate

for the Democratic Party’s nomination for the U.S. Senate. Three days before
the election the Concord Monitor, a daily newspaper, carried a syndicated col-
umn characterizing Roy as a “former small-time bootlegger.” Roy was defeated
in the primary, and he subsequently sued the newspaper and the distributor of
the syndicated column for libel. He recovered a judgment of $20,000—$10,000
against each defendant.1
The New Hampshire courts ruled that although Roy was a “public official”
subject to the actual malice requirement of New York Times, that requirement
applied only if the defamatory allegation pertained to Roy’s fitness to hold the
public office to which he aspired. A jury decided that the challenged assertion
was not relevant in this respect and returned a verdict for Roy.2
The U.S. Supreme Court reversed. It agreed that Roy, as a candidate for
elective public office, could properly be characterized as a public official, al-
though “it might be preferable to categorize a candidate as a ‘public figure’ . . .
to avoid straining the common meaning of words.”3 New York Times and Garri-
son had evinced an intention that its rule apply to such candidates; those deci-
sions had relied on state court precedents affording immunity to good faith
criticism of both public officials and candidates for elective office. If the First
Amendment was “fashioned to assure the unfettered interchange of ideas for
the bringing about of political and social changes desired by the people,” then
“the constitutional guarantee has its fullest and most urgent application pre-
cisely to the conduct of campaigns for political office.”4
The jury’s verdict in this case could not be allowed to stand because it was
improper to submit to the jury the question of whether Roy’s alleged bootlegger
activities were relevant to his fitness to hold public office:
The principal activity of a candidate in our political system . . . consists of putting
before the voters every conceivable aspect of his public and private life that he
thinks may lead the electorate to gain a good impression of him. [The] candidate
who vaunts his spotless record and sterling integrity cannot convincingly cry
“Foul!” when an opponent or an industrious reporter attempts to demonstrate the
contrary. . . .
Given the realities of our political life, it is by no means easy to see what
statements about a candidate might be altogether without relevance to his fitness
for the office he seeks. The clash of reputations is the staple of election campaigns,
and damage to reputation is, of course, the essence of libel. But whether there
remains some exiguous area of defamation against which a candidate may have full
recourse is a question we need not decide in this case. . . .
We . . . hold as a matter of constitutional law that a charge of criminal conduct,
no matter how remote in time or place, can never be irrelevant to an official’s or a
candidate’s fitness for office for purposes of application of the “knowing falsehood
or reckless disregard” rule of New York Times Co. v. Sullivan.5
Since the jury in this case had been permitted to rule that the bootlegger charge
was not relevant to Roy’s fitness to hold office, the state court judgment had to
be set aside.
O N T H E S A M E D AY T H E C O U R T D E C I D E D R O Y , it also ruled on a state court

judgment emerging from Florida. Leonard Damron was the mayor of Crystal
River in Citrus County and the proprietor of a local garage. In April 1966 he
was a candidate for the office of county tax assessor. The Ocala Star-Banner, a
small daily newspaper, printed a story stating that Leonard Damron had been
indicted for perjury in a civil-rights action in a federal court. The charge was
false. The Star-Banner published two retractions before the election, but Damron
was defeated in his bid for the county assessor post. He sued for libel, and a
Florida jury awarded him $22,000 in compensatory damages for the harm to
him as an individual, a public officer, a candidate for public office, and a
businessman.6
At the trial the newspaper explained that the error had resulted from a
“mental aberration” by an area editor who had been working for the paper for a
little more than a month. He had run several stories about the political activities
of Leonard Damron, and when a local reporter called in the story in issue,
correctly identifying the protagonist as James Damron (Leonard’s brother), the
A N Y T H I N G T H AT T O U C H E S ON FITNESS FOR OFFICE 39
editor inadvertently changed the name to Leonard; he had never heard of James
Damron prior to the telephone report. The Florida courts ruled in favor of
Leonard Damron, holding that the story was defamatory as a matter of law and
that it was not necessary to prove actual malice under New York Times: Damron’s
“official conduct or the manner in which he performed his duties [was] not the
basis for the inaccuracy here involved.”7
The U.S. Supreme Court reversed. As mayor of Crystal River, Leonard
Damron was a public official; as a candidate for the office of county tax asses-
sor, he came within the same rule.8 The contemporaneous decision in Roy
precluded restriction of the actual malice requirement to “official conduct” as
the Florida courts had done in this case:
Public discussion about the qualifications of a candidate for elective office presents
what is probably the strongest possible case for application of the New York Times
rule. And under any test that we can conceive, the charge that a local mayor and a
candidate for a county elective post has been indicted for perjury in a civil rights
suit is relevant to his fitness for office.9
The case was remanded to afford Damron the opportunity to prove actual
malice on the part of the newspaper.
R O Y A N D D A M R O N W E R E D E C I D E D I N 1971. Since that date, countless

cases have been litigated involving elected officials and candidates for elective
office. None has been found in which the assailed defamation was deemed
irrelevant to the complainant’s fitness to hold office. Further, this broad dispen-
sation has been applied to the most obscure office for which a public election is
prescribed.10 No other rule appears workable. In a system of representative
government, voters are the decisionmakers on candidates for elective office.
They may premise their decisions on the most lofty or the most crass consider-
ations. Candidates must have free range to reach voter agendas, however base
they may be. If a candidate misjudges, she may be repudiated by the voters. But
that is a task for voters, not for judges, absent the actual malice that vitiates the
constitutional privilege.11
The electoral process, of course, extends beyond the candidate and en-
compasses the candidate’s entourage: her campaign staff,12 her advisers,13 her
supporters and other officials of her political party,14 and potentially her family
(if they participate in the campaign).15 For the most part, lower courts have
classified prominent campaign personnel as public figures. Their identities and
actions bear on the character and qualifications of the candidate and may
properly be placed before the voters.
Occasionally, a court goes astray. In Lawrence v. Moss,16 Frank Moss op-

posed Orrin Hatch in a contest for a U.S. Senate seat. During the campaign
Moss charged that Andrew Lawrence, a member of the Hatch campaign team,
had been a “bag man” for former vice president Spiro Agnew. Lawrence sued
Moss for defamation. Lawrence had served on Agnew’s staff and had engaged in
a variety of political activities, including fund-raising. In 1976 he joined Sena-
tor Hatch in Utah and “assisted the Hatch campaign as a private consultant in
political polling, strategy, voter targeting, volunteer organization, advertising,
writing, fundraising and general campaign management.”17 The Court of Ap-
peals for the Tenth Circuit held that Lawrence was not a public figure because
he had stayed in the background and had not thrust himself into public promi-
nence in Utah; he had made no speeches and no radio or television appearances
and did not write for public consumption.18 The court was concerned that if
Lawrence were a public figure, “so are all those who participate inconspicu-
ously in political action designed to influence an election.”19
The decision is unsound. The point is not whether Lawrence had sought
the public limelight; clearly, he had not. But Hatch was seeking reelection; his
name was before the voters, and the voters were entitled to information about
the character of any person prominent in the Hatch campaign—as Lawrence
was—even though he had stayed in the background. The court is correct in
asserting that not every inconspicuous campaign worker is a public figure; but
Lawrence had a measure of prominence that could have reflected adversely on
the Hatch campaign, and his choice to remain inconspicuous should not have
affected the outcome of the litigation.20
Elections may concern issues rather than candidates. The same analysis
applies. Those who play a prominent role in proposing or opposing proposi-
tions placed before the voters in public referenda are held to be public figures
subject to the limitations on defamation imposed by constitutional privilege.21
As regards the electoral process, the Supreme Court and the lower courts
have invoked First Amendment principles with appropriate vigor. But for occa-
sional aberrations such as Lawrence v. Moss, the courts have consistently applied
the actual malice rule to defamation claims asserted by elected officials, candi-
dates for elective office, and persons prominent in election campaigns.
S I X
THE TALE OF THE FURTIVE NIGHT WATCHMAN
I N N E W Y O R K T I M E S , an elected city commissioner was held to be a public

official subject to the actual malice requirement. In Garrison, state court judges
were subjected to the same requirement. In subsequent rulings the U.S. Su-
preme Court has conferred public figure status upon a county attorney,1 a chief
of police,2 a court clerk,3 a deputy sheriff,4 and a deputy chief of detectives.5 But
are all public employees “public officials” subject to the actual malice require-
ment of New York Times? The Supreme Court has not been prepared to go so
far.
Frank Baer had been supervisor of a recreational facility owned and oper-
ated by Belknap County, New Hampshire; he was answerable to three elected
county commissioners. During the 1950s a public controversy had developed
over the way the facility was operating. Critics had argued that the county
commissioners had not developed the area’s full potential, either as a resort for
local residents or as a tourist attraction. In 1959 the New Hampshire Legisla-
ture transferred control of the recreational facility to a special five-man com-
mission. Baer was discharged.6
Alfred Rosenblatt regularly contributed an unpaid column to the Laconia
Evening Citizen, a local newspaper. In January 1960, six months after Baer’s
discharge, Rosenblatt published a column celebrating the great increase in rev-
enues from the recreational facility under the new regime. He concluded by
asking: “What happened to all the money last year? and every other year? What
magic has [the new regime] wrought to make such tremendous difference in net
cash results?”7
Baer sued Rosenblatt for libel. His witnesses testified that they read
Rosenblatt’s column as imputing mismanagement and peculation during Baer’s
tenure. Baer sought recovery under two theories. The first of these, grounded in
New Hampshire law, permitted recovery if the column cast suspicion indis-
criminately on the small number of persons who had comprised the former
management group. Writing in 1966, the U.S. Supreme Court rejected this
theory as barred by New York Times: “A theory that the column cast suspicion
on the members of the group responsible for the conduct of this government
operation is tantamount to a demand for recovery based on libel of govern-
ment, and therefore is constitutionally insufficient.”8
Baer’s second theory—supported by the testimony of several witnesses—
was that although the column had not referred to him by name or position, it
had been read as referring specifically to him as the man in charge at the recre-
ational area and responsible for its financial affairs. This posed the question of
whether Baer was a public official subject to the actual malice requirement of
New York Times. To resolve this question, the Court looked to the interests
sought to be advanced by New York Times: “first, a strong interest in debate on
public issues, and, second, a strong interest in debate about those persons who
are in a position significantly to influence the resolution of those issues”:9
Criticism of those responsible for government operations must be free, lest
criticism of government itself be penalized. [Accordingly,] the “public official”
designation applies at the very least to those among the hierarchy of government
employees who have, or appear to the public to have, substantial responsibility for
the control of the conduct of governmental affairs. [New York Times applies where]
a position in government has such apparent importance that the public has an
independent interest in the qualifications and performance of the person who
holds it, beyond the general public interest in the qualifications and performance
of all government employees.10
To this comment the Court attached a footnote disclaiming an intent to

confer public figure status on “a night watchman accused of stealing state se-
crets.” To apply the standard so broadly “would virtually disregard society’s
interest in protecting reputation. The employee’s position must be one which
would invite public scrutiny and discussion of the person holding it, entirely
apart from the scrutiny and discussion occasioned by the particular charges in
controversy.”11
A judgment in favor of Baer was set aside. The case was remanded to the
New Hampshire courts to afford Baer an opportunity to negate the claim that
he was a public official and, if unsuccessful in this respect, to adduce evidence
of actual malice meeting the requirement of New York Times.
THE TA L E O F T H E F U R T I V E N I G H T WAT C H M A N 43
T H E C O U R T ’ S F O R M U L AT I O N I N R O S E N B L AT T V . B A E R is unworkable and
unsound. Consider the night watchman example. If state secrets are stolen and
a journalist develops evidence pointing to the night watchman, no doubt he can
turn his evidence over to the police. But can he write the story? Or must he
wait, fearful of liability in defamation, until formal charges are filed against the
night watchman? Suppose no charges are filed. Perhaps the reporter can then
write a story, protected by New York Times, charging laxity or neglect by law
enforcement authorities. But how is that story to be written without identifying
the night watchman and the case against him?
An argument could be made that defamatory attacks on subordinate public
employees are not essential to the constitutional principle at issue—at least not
in the first instance—because the journalist or an aggrieved citizen could bring
any adverse information to the employee’s superior and await correction by that
official before making a public disclosure. A complaint against a police officer
could be made first to the police department; a grievance about a public school
teacher could be presented initially to her superiors in the school system. Such
a requirement would protect many subordinate employees against unfounded
attacks on their reputations. But it would also hobble effective criticism of
government. Any requirement that administrative remedies be pursued at the
outset would stifle exposure of potential official misconduct at the time it is
most relevant—when it first comes to light. To defer publicity until the admin-
istrative machinery of government rumbles in review over a period of weeks or
months is to deprive the criticism of much of its effective force. It also negates
the pressure most likely to evoke an appropriate response from superiors in the
government hierarchy.
The lower courts are in disarray on this issue. Most have held that police
officers and other law enforcement personnel are public officials without regard
to their rank.12 Social workers have been similarly classified.13 But public school
teachers and principals have been variously classified,14 and at least some cases
have ruled that firefighters are not public officials.15 In all such cases the appro-
priate question is whether the subordinate official is accused of official miscon-
duct. If so, New York Times should apply to that accusation. If not, the standard
of Rosenblatt v. Baer seems appropriate. If a government official lacks signifi-
cant responsibility for formulating or implementing government policy, deroga-
tory comments unrelated to performance on the job should be treated in the
same manner as comments pertaining to the population generally. Under this
approach, the reputations of millions of government workers can be protected
as regards their private lives without detracting from the central thrust of New
York Times v. Sullivan.
An example is Kassel v. Gannett Co.16 Jeffrey Kassel was a staff psychologist
at a Veterans Administration (VA) hospital. A Gannett reporter interviewed
Kassel at his home, eliciting his views on the Vietnam War. When Gannett
published a distorted report of the interview, Kassel sued for defamatory false-
hood and obtained a favorable jury award. The Court of Appeals for the First
Circuit held that Kassel was not a public official, relying on three factors: (1)
Kassel’s position at the VA did not invite scrutiny independent of the contro-
versy created by the Gannett story; he had no policy-making function. His job was
to see patients and administer tests.17 (2) His position at the VA did not afford
Kassel ready access to the press; he had no continuing contact with the media.18
(3) There was “no evidence that, by accepting employment as a staff psychologist in
a VA hospital, Kassel assumed the risk of sensationalist media coverage.”19
The court’s analysis is wide of the mark. The key fact in Kassel is that the
story had nothing to do with Kassel’s official duties. His views on the Vietnam
War—whatever they may have been—were not shown to have been related in
any way to his treatment of patients at the government facility.20 Assume, how-
ever, that the Gannett story had sought to document improper practices at the
VA hospital and had found that Kassel, in employing deficient testing proce-
dures, had contributed to the malfunctioning of the VA facility with disastrous
consequences for patients. Under these circumstances, effective criticism of the
government’s management of the hospital would have required that Kassel’s role
be exposed: he should be held to be a public official if his conduct on the job is
at issue.21 In all other cases he should be treated as a private person, entitled to
more expansive protection against defamation.
The factors adduced by the Court in Rosenblatt v. Baer are pertinent only in
instances in which a policy-making official’s off-duty behavior is of such a na-
ture as to affect public confidence in the soundness of his exercise of discretion-
ary authority. This line of analysis also is invoked in cases in which prospective
appointees to high-level positions are subjected to public criticism. Since such
appointees typically have not held the offices in question, criticisms normally
will not focus on derelictions of official duties. But if the position has signifi-
cance because of its policy-making or supervisory aspects, the prospective ap-
pointee is a public figure analogous to a candidate for public office.22 Similarly,
persons providing advice on government policy are public figures.23 Constitu-
tional privilege applies in both instances.
Some cases take an unusual turn. In Sellars v. Stauffer Communications,24
James Sellars was a county sheriff. Stauffer Communications accused him of
THE TA L E O F T H E F U R T I V E N I G H T WAT C H M A N 45
paying public funds to Kelly Heistand, a former public employee, after her
employment had been terminated. Heistand had been Sellars’s girlfriend, and
they later married. The story was false, and Heistand recovered on proof that
Stauffer had been negligent in printing the falsehood. A Kansas court held that
Heistand was not a public official because her duties had been those of a file
clerk. Nor was she a public figure, despite her subsequent marriage to Sellars;
a publisher “should not be able to negligently defame a person simply by imply-
ing that a related public official also participated in the defamatory acts.”25 A
dissenting opinion argued that the actual malice test of New York Times should
apply if “the spouse’s activities . . . reflect on the fitness of a public official to
perform the duties of the office held or sought.”26 The dissent is correct. Al-
though relatives of public officials normally are not considered public figures,
in the Sellars case Heistand should not be able to sue in defamation untram-
meled by the New York Times standard and thereby curtail effective criticism of
her husband’s conduct as a government official. How can Sheriff Sellars be
subjected to critical comment without also mentioning Heistand, the benefi-
ciary of Sellars’s alleged misconduct? The court’s decision is at variance with the
central message of New York Times.
AS REGARDS APPOINTEES TO THE UPPER ECHELONS OF GOVERNMENT—

those with significant discretionary or supervisory authority—Rosenblatt pro-
vides suitable guidance. The actual malice rule that governs defamation claims
by elected officials applies with full rigor to defamation claims by high-ranking
appointed officials. But neither Rosenblatt nor any other influential opinion
provides an appropriate guideline for subordinate government employees. The
rule proposed here is both straightforward and consistent with the First
Amendment’s concern with enabling criticism of government. If the alleged
defamation pertains to an employee’s performance of his official duties, that
defamation gains protection under the actual malice rule without regard to the
rank of the employee under challenge. The private lives of subordinate employ-
ees are not similarly subject to unfettered scrutiny and criticism. In regard to
their private affairs, subordinate government employees should be able to sue
for defamation on the same terms as any private citizen.
S E V E N
INTO THE VORTEX OF PUBLIC CONTROVERSY
G E N E R A L E D W I N W A L K E R H A D R E S I G N E D from a career in the U.S. Army to

engage in political activity. He was particularly interested in the use of federal
forces in school desegregation controversies in the South; he had made a num-
ber of strong statements against such actions that had received wide publicity.
Walker had his own following, described as “Friends of Walker,” and he had
achieved some political prominence. In September 1962 Walker was present at
the University of Mississippi when a massive riot erupted as a result of efforts
by federal marshals to enforce a court decree ordering the enrollment of a
Negro, James Meredith. An Associated Press news dispatch stated that Walker
had taken command of the violent crowd and had personally led a charge against
the federal marshals. It described Walker as encouraging the rioters to use
violence and providing them with technical advice on combating the effects of
tear gas.1
Walker denied any participation in the violent encounter and sued the
Associated Press for libel in a Texas state court. A verdict of $500,000 in com-
pensatory damages was sustained by the Texas courts, but an award of $300,000
in punitive damages was set aside because Walker had failed to prove malice.2
Writing in 1967, the U.S. Supreme Court rejected the award of compensatory
damages to Walker because he had failed to show fault on the part of the Asso-
ciated Press to the extent required by the First Amendment.
For four justices led by Justice Harlan, the question was whether Walker
had shown that the Associated Press had engaged in “highly unreasonable con-
duct constituting an extreme departure from the standards of investigation and
INTO THE VORTEX OF PUBLIC CONTROVERSY 47
reporting adhered to by responsible publishers.”3 Harlan and his colleagues

ruled that Walker had not made that showing. Chief Justice Warren ruled in
favor of the Associated Press on the ground that Walker had failed to show
actual malice as required by New York Times.4 Although they disagreed on the
appropriate standard of fault to be applied, all five justices agreed that Walker
was a public figure:
Walker commanded a substantial amount of independent public interest at the
time of the [publication. He achieved public figure status] by his purposeful
activity amounting to a thrusting of his personality into the “vortex” of an
important public controversy, [and he] commanded sufficient continuing public
interest and had sufficient access to the means of counterargument to be able “to
expose through discussion the falsehood and fallacies” of the defamatory state-
ments.5
Chief Justice Warren’s position has gained acceptance in subsequent Supreme

Court rulings on the standard of fault public figures must meet in asserting
defamation claims, that is, actual malice.6 But there was no dispute concerning
the classification of General Walker as a public figure.
S H O U L D A D V O C A C Y O N I S S U E S O F P U B L I C P O L I C Y be sufficient to confer
public figure status? The answer should be yes if the advocate is prominent. In
this type of case, access to the media may be a meaningful criterion.7
The formulation of public policy, under a system of representative govern-
ment, requires more than periodic elections and debates about the merits of
particular candidates. It requires debates about issues. Public policies are at
stake not simply during election campaigns but continuously as legislators, judges,
and administrators ponder the future course of government action. Proponents
of present government policy cannot employ the law of defamation to silence
their opponents; to do so would be to invoke the law of seditious libel to silence
criticism of government. If this is the case, supporters of existing policies must
be given the same protection. To protect the critics while silencing proponents
would have a distorting impact on public debate. The critics of government
policy, like opposition candidates seeking office, may have an orthodoxy of
their own that they seek to impose on the public. If the public is to make a
choice, information and arguments must be freely available from all sides. No
faction should receive more or less protection than any other faction in apply-
ing the law of defamation.
Accordingly, Walker was correctly decided in conferring public figure sta-
tus on persons of prominence seeking to influence the resolution of issues of
public policy. But the practical application of the Walker standard is beset with
difficulties.
E R I C W A L D B A U M WA S P R E S I D E N T O F G R E E N B E L T C O N S U M E R S E R V I C E S ,
a diversified consumer cooperative that during Waldbaum’s tenure was the sec-
ond-largest cooperative in the country. In March 1976 Greenbelt’s board of
directors dismissed Waldbaum—a development reported in Supermarket News,
a trade publication owned by Fairchild Publications. The five-sentence article
reported Waldbaum’s replacement by Rowland Burnstan and stated that Greenbelt
“has been losing money the past year and is retrenching.” Waldbaum claimed
the report of financial losses was false and had been injurious to his professional
reputation. He sued Fairchild Publications for defamation.8
In an influential 1980 opinion, the Court of Appeals for the District of
Columbia ruled that Waldbaum was a participant in a public controversy and
held that he was a public figure. The court’s methodology set forth three steps.
First, it is necessary to identify a public controversy. This entails two ele-
ments—one qualitative, the other empirical. (1) “[A] public controversy is not
simply of interest to the public; it must be a real dispute, the outcome of which
affects the general public or some segment of it in an appreciable way”—one
whose “ramifications will be felt by persons who are not direct participants.” (2)
The judge must examine whether persons were actually discussing some spe-
cific question—whether the press was covering the debate, reporting what people
were saying, and uncovering facts and theories to help the public form some
judgment. However, “[A] court may not question the legitimacy of the public’s
concern; such an approach would turn courts into censors of what information
is relevant to self-government. . . . A vital part of open public debate is deciding
what should be debated. No arm of the government, including the judiciary,
should be able to set society’s agenda.”9 (Other courts have defined the concept
of public controversy in similarly broad terms: “any topic upon which sizeable
segments of society have different, strongly held views.”10)
Second, “Once the court has defined the controversy, it must analyze the
plaintiff ’s role in it. Trivial or tangential participation is not enough. . . . The
plaintiff either must have been purposely trying to influence the outcome or
could realistically have expected, because of his position in the controversy, to
have an impact on its resolution.”11
Finally, “[T]he alleged defamation must have been germane to the plaintiff ’s
participation in the controversy. His talents, education, experience, and mo-
tives could have been relevant to the public’s decision whether to listen to him.
Misstatements wholly unrelated to the controversy, however, do not receive the

New York Times protection.”12
In the case at hand, the court found that Waldbaum was a public figure.
Greenbelt, the second-largest cooperative in the country, attracted public attention
with pathbreaking policies on unit pricing, open dating, and highly competi-
tive advertising—feeding public controversies “over the viability of cooperatives as
a form of commercial enterprise and over the wisdom of various policies that
Greenbelt in particular was pioneering.”13 Waldbaum, as president of Greenbelt,
was an outspoken advocate of these controversial policies and did not confine
himself to being a “boardroom president whose vision is limited to the balance
sheet.”14 Finally, the allegedly defamatory comment was held to be germane
because the profitability of the enterprise under his management is pertinent to
“the commercial success or failure of the actions he was advocating” and to
“whether other firms should adopt them.”15
Waldbaum provides a generally sound approach to identification of activ-
ists in the public arena, although on its particular facts the decision is flawed.
The court paid no attention to the context in which the defamation had been
uttered: a brief story about a change in Greenbelt’s management. The story had
nothing to do with the success or failure of any of the controversial policies the
court found to surround Waldbaum; none of the policies or issues was even
mentioned in the five-sentence article.
I N V O K I N G T H E A P P R O A C H O F W A L K E R A N D W A L D B A U M can pose a hazard

to public debate. The “whistleblower” becomes a public figure for purposes of
the public debate engendered by his or her disclosures.16 If that status opens the
door to unfettered character assassinations directed at whistleblowers, fewer
disclosures may be made and fewer debates initiated.17 Enforcing a rigorous
standard of relevance may have important First Amendment implications. But
seeking to enforce such a standard may prove illusory if, as the court said in
Waldbaum, the “talents, education, experience, and motives” of the whistleblower
can be drawn into question.
Some efforts have been made to limit the scope of public figure status. One
example is Foretich v. Capital Cities/ABC, Inc.,18 a 1994 opinion handed down
by the Court of Appeals for the Fourth Circuit. Dr. Elizabeth Morgan and Dr.
Eric Foretich were married and had a daughter, Hillary. Shortly thereafter the
couple divorced, and a custody battle ensued concerning Hillary. Dr. Morgan
accused Dr. Foretich of sexually abusing Hillary, took Hillary into hiding, and
refused to produce her as directed by a court order. Dr. Morgan was cited for
contempt of court and served twenty-five months in prison before being re-
leased pursuant to an Act of Congress. Dr. Morgan also accused Dr. Foretich’s
parents, Victor and Doris Foretich, of sexually abusing Hillary. The two re-
sponded with strong denials, with attacks on Dr. Morgan’s mental capacity and
motives, and with expressions of support for their son. They acceded to re-
quests for interviews with the press, they attended press conferences and rallies
in support of their son’s cause, and they appeared on several television pro-
grams. ABC produced a docudrama about the Morgan-Foretich dispute in which
one of the characters accused Victor and Doris Foretich of child abuse. That
accusation was the basis of a defamation action brought by the grandparents
against ABC.19
The court of appeals held that the custody dispute was a public controversy
within the meaning of Waldbaum because it had received extensive public atten-
tion and had foreseeable and substantial ramifications beyond the immediate
participants, raising numerous public issues including questions about child
abuse, parental rights, and the contempt power of the courts.20 But the court
concluded that Victor and Doris Foretich were not public figures because they
never “assumed a role of special prominence in the Morgan-Foretich contro-
versy in order to influence its outcome.”21 Their role was a legitimate exercise
of the right of reply, a privilege recognized at common law and not abused in
this case because it was “(1) responsive to Dr. Morgan’s attacks; (2) proportion-
ate to those attacks; and (3) not excessively published.”22 The second and third
requirements were satisfied because Dr. Morgan’s extremely harmful attacks
had been widely disseminated. The first requirement raised a closer question
because the grandparents’ comments could be viewed as going beyond Dr.
Morgan’s attack and seeking to influence the outcome of the custody dispute.
But the court resolved doubts in favor of Victor and Doris Foretich to vindicate
their right of self-defense: “Further extending the New York Times actual mal-
ice standard here would serve only to muzzle persons who stand falsely accused
of heinous acts and to undermine the very freedom of speech in whose name
the extension is demanded.”23 The problem with this reasoning is that the pos-
tulated muzzling effect is potentially applicable to anyone considering whether to
participate in a public debate.
A different tack was taken in Georgia Society of Plastic Surgeons v. Ander-
24
son. Defendant plastic surgeons published a professional article questioning
the qualifications of Jack Anderson, an otolaryngologist, to perform plastic
surgery. On Anderson’s suit for defamation, a Georgia court refused to classify
Anderson as a public figure, treating the controversy as “primarily a private
struggle within the confines of the medical profession . . . chiefly of interest to
plastic surgeons and others who perform plastic surgery. . . . Furthermore, the
controversy has been manifest, for the most part, in the pages of medical jour-
nals and other publications whose circulation is generally confined to doctors.”25
The Georgia decision is unsound. It ignores the fact that our society is
composed of numerous groups. Within any group an issue may emerge that is
of importance to the members of the group although it may be of limited
significance to the public at large. In these circumstances a person may be a
public figure for purposes of debating a particular issue in a limited context but
not beyond that context. For example, in Evans v. Lawson,26 Evans sued Lawson
for allegedly defamatory comments included in a letter to members of Virginia’s
Lions International. The district court concluded that Evans, who held office in
the Lions, should be viewed as an “organization figure.”27 As such, Evans would
be subject to critical commentary protected by the actual malice rule as long as
the comments were made by members of the Lions to members of the Lions
and were related to Evans’s role in the Lions.
Similar findings of public figure status have been made in a case involving
limited publication in a contest for control of the board governing a private
residential development,28 in a sexual harassment dispute where comments were
confined to persons at the employee’s place of employment,29 in a criticism of a
credit union official circulated to members of the union,30 and in derogatory
comments about a college professor and a college administrator limited to the
college community.31 Public figure status also has been found within a limited
geographic area (a prominent realtor in a defined locality)32 and within a par-
ticular ethnic community (an attack in Portuguese on a prominent member of
the Portuguese American community in Rhode Island).33 Protection of free
expression is particularly important in contests for control of private organiza-
tions exercising significant authority over their membership. The Supreme Court,
interpreting the National Labor Relations Act, has applied New York Times v.
Sullivan to defamations uttered in the course of union elections, requiring proof
of actual malice to sustain liability.34
In the end, courts are confronted with difficult issues in applying the three
prongs of Waldbaum: defining the public controversy and its scope, determin-
ing whether a particular participant is sufficiently prominent in that contro-
versy, and ascertaining whether the alleged defamation is germane to the
participant’s role in the controversy. The issue is particularly challenging when
the alleged defamation is the first salvo initiating an ensuing public controversy.
Petitions addressed to government officials gain the shelter of constitu-
tional privilege on the same terms as other allegedly defamatory statements: actual
malice is required for attacks on public officials and public figures, negligence
for attacks on private figures.35 The methodology for ascertaining public figure
status follows the pattern set forth in Waldbaum.36
P R O M I N E N T PA R T I C I PA N T S I N P U B L I C D E B AT E S are properly classified as pub-

lic figures. Their defamation claims are subject to the actual malice require-
ment if the alleged defamation pertains to the debate in which they are partici-
pating. But several points deserve emphasis.
1. Prominence is to be judged in the context of the group in which the debate
occurs. A person can be a public figure for purposes of a debate within a
definable limited community even though the debate may receive little or no
attention in the larger society.
2. The distinction between initiating a new public debate and participating in an
ongoing debate is extremely troublesome. Some courts have recognized the
problem, but they have not formulated systematic responses. Perhaps the
pioneer should be protected to the same extent as those who join later if the
initial salvo does in fact precipitate a serious public debate.
3. Subjecting participants in public debates to the actual malice rule may exact a
social cost. Since the boundaries of relevance are extremely broad—anything
that may affect the spokesperson’s credibility—private citizens run a substantial
risk that anything in their private lives may be the subject of defamatory
falsehoods, falsehoods that may be beyond redress if the actual malice require-
ment cannot be satisfied. Some private citizens may choose not to participate in
public debates.
4. One possible limitation on the vulnerability of public figures of this sort—one
to which the courts have paid scant attention—is careful scrutiny of the context
in which the alleged defamation is uttered. In Waldbaum, for example, Eric
Waldbaum was clearly a public figure with respect to a number of issues
identified by the court. But the story under attack had nothing to do with any
of those issues. It would not have impaired a full and open discussion of the
identified issues if the court had allowed Waldbaum to recover for the adverse
impact of a defamation in a story unrelated to those issues.
E I G H T
THE BIG FOOTBALL FIX
W A L LY B U T T S WA S T H E AT H L E T I C D I R E C T O R at the University of Georgia, a

state school. Although he had overall responsibility for administration of the
university’s athletic program, Butts was not considered a public official because
he was employed by the privately supported Georgia Athletic Association. In
1962 the Saturday Evening Post, published by Curtis Publishing Company, ran
an article entitled “The Story of a College Football Fix.” The story reported on
a telephone conversation—accidentally overheard by others—between Butts
and Paul “Bear” Bryant, head coach of the University of Alabama football team.
In advance of an impending clash between the Georgia and Alabama teams,
Butts was said to have conveyed to Bryant “Georgia’s plays, defensive patterns,
all the significant secrets Georgia’s football team possessed.” The article con-
cluded: “Wally Butts will never help any football team again. [Investigations are
under way, and] careers will be ruined, that is for sure.”1
Coach Butts denied the assertions in the Post article and sued for libel in a
U.S. district court. He obtained a verdict for $460,000, sustained by both the
Court of Appeals for the Fifth Circuit and the U.S. Supreme Court.2
The Butts litigation was resolved in the same 1967 opinion that denied
Walker relief in his claim against the Associated Press (the case is titled Curtis
Publishing Co. v. Butts). Again, Justice Harlan and three colleagues looked for
“an extreme departure from [responsible journalistic] standards of investigation
and reporting,”3 and Chief Justice Warren inquired whether Butts had shown
“actual malice” on the part of the Saturday Evening Post.4 Both opinions con-
cluded that Butts had established the requisite degree of fault. Again, both
opinions agreed that Butts was a public figure. Justice Harlan observed that
Butts commanded substantial public interest at the time of publication; he “may
have obtained [public figure] status by position alone . . . but [he] commanded
sufficient continuing public interest and had sufficient access to the means of
counterargument” to challenge the defamatory statements.5
In a concurring opinion regarded as pivotal, Chief Justice Warren articu-
lated a more expansive theme:
Increasingly in this country, the distinctions between governmental and private
sectors are blurred. . . . [Power has] become much more organized in what we
commonly considered to be the private sector. In many situations, policy determi-
nations which traditionally were channeled through formal political institutions
are now originated and implemented through a complex array of boards, commit-
tees, commissions, corporations, and associations, some only loosely connected
with the Government. This blending of positions and power has also occurred in
the case of individuals so that many who do not hold public office at the moment
are nevertheless intimately involved in the resolution of important public
questions or, by reason of their fame, shape events in areas of concern to society at
large. [Such persons] often play an important role in ordering society. . . . Our
citizenry has a legitimate and substantial interest in the conduct of such persons,
and freedom of the press to engage in uninhibited debate about their involvement
in public issues and events is as crucial as it is in the case of “public officials.”6
The chief justice’s commentary includes an array of disparate ideas. First

and least problematic is the concept of governmental actions carried out through
a combination of public officials and private persons. Whether the latter are
classified as public officials or not, the action is government action, and it can
be challenged and its participants criticized under the central thesis of New York
Times v. Sullivan. Given the status of Wally Butts as athletic director at a state
university, Chief Justice Warren could have resolved the issue on this limited
(and least problematic) basis.
Second, individuals “intimately involved in the resolution of important
public questions” should be subject to challenge and criticism under the reason-
ing of Walker. If the advocacy is public, the outcome is plain. But behind-the-
scenes advice may also be influential. If so, there is no point in pursuing the
question of whether the advice was given publicly or privately; it is the influence
on public policy that is decisive. Thus Charles (Bebe) Rebozo, a confidant of
President Nixon, was held to be a public figure even though he held no public
office and his advice to the president was given in private.7
Third, there are persons who, “by reason of their fame, shape events in
areas of concern to society at large” and “play an important role in ordering
society.” But how do they shape events and participate in ordering society? If a
THE BIG FOOTBALL FIX 55
person—famous because of her artistic, athletic, or other public persona—

chooses to debate a public issue (for example, Jane Fonda on the Vietnam War),
she is a public figure under Walker.8 What is the relevance of a fame not called
into service in support of, or opposition to, any public issue? Consider Coach
Butts. Putting to one side his involvement with a state university (which played
no role in the outcome of the case), why should the Supreme Court be con-
cerned that the law of defamation might suppress criticism of his ethics in
coaching football? He exercises no government office, he formulates no govern-
ment policy, and he has not interjected himself into any debate to seek to affect
the outcome of any public issue. In sum, representative government will pro-
ceed unhampered whether Coach Butts is or is not the victim of defamatory
allegations and whether, and under what circumstances, he will be permitted to
recover damages. The fact that his position gives him access to the media
should not be determinative.9 Undoubtedly, the Post story was of interest to the
public, but absent a relation to a larger issue—such as an affiliation between
Wally Butts and professional gamblers—it is hard to see the story’s relevance to
any issue of public concern.
The reasoning in Butts is unsound. Coach Butts should not have been treated
as a public figure; there was no justifiable basis for the Court’s determination
once it decided not to pursue Butts’s affiliation with the University of Georgia.
T H E A P P R O A C H O F B U T T S has generated a bewildering array of opinions hold-

ing that athletes, entertainers, and other celebrities are public figures.10 A par-
ticularly flagrant example is Brewer v. Memphis Publishing Co.11 A brief item in
a 1972 issue of a Memphis newspaper was entitled “Flickering Flame.” It dis-
cussed Anita Wood, who had come to Memphis to sing on TV in 1957 and who
had become Elvis Presley’s “No. 1 girl” soon thereafter. The story reported that
in 1972 Ms. Wood had stopped by Presley’s hotel in Las Vegas “for what ap-
peared to be a ‘reunion’ of two old friends.” Further, “Elvis recently filed for
divorce from his wife. . . . Miss Wood is divorced from former Ole Miss
football star Johnny Brewer.”
The story was wrong on two counts. Wood had not been in Las Vegas at the
time of the alleged reunion. And Wood’s marriage to John Brewer was intact.
When the Brewers sued for defamation, the court of appeals held that both were
public figures despite the fact that Anita Wood had ceased to date Elvis Presley
in 1961 and had retired from show business in 1964. (Mr. Brewer had played
professional football until 1970 and thereafter remained in the public eye as a
result of political and business activities.)12
The court’s finding on Anita Wood Brewer was based on the media expo-
sure and fame she had gained during her career and as a result of her romantic
relationship with Presley. Her name had continued to appear in stories about
Presley after she retired from show business. In the defamation action, she was
required to prove actual malice because the article “dealt primarily with that
romantic relationship and incidentally with her marital status.” John Brewer
was held to be a public figure—even though the article did not deal with the
basis of his fame—“because he may not, by marrying another public figure,
reduce the constitutional protection afforded the press to publish stories about
his spouse.”13
The court treated celebrities, such as the Brewers, as persons who had
sought public attention and thereby incurred “the risk of increased exposure
and injury to reputation.”14 But this is a quid pro quo imposed on celebrities by
the court, not one to which the Brewers had actually consented. The conse-
quences of Brewer are appalling. A woman pursuing a career as an entertainer
can be branded an adulteress (as in Brewer) or called a prostitute, as has oc-
curred in several similar cases. One of these, James v. Gannett Co.,15 classified a
belly dancer as a public figure and reasoned that some readers have “a keener
interest in following public figures whose activities are reported in the sports or
gossip pages” than in reading straightforward news reports: “If the public wants
information on public personalities, the newspaper, to survive, must supply it.
Fundamentally, the purchase of the newspaper for whatever reason helps sus-
tain its publication and, thus, serves to assure the commercial survival of the
newspaper, a matter of concern to all its readers, the followers of the sports as
well as the followers of the news.”16
The reasoning overshoots the mark. If gossip is of importance to a newspaper,
it will publish gossip. But it and its rivals will have to consider the consequences of
possible liability in defamation. Exposure to liability requires the exercise of care.
The care actually exercised by the media will be determined by the market. Exces-
sively prudent papers will lose patronage to the more adventurous; excessively
reckless publishers will pay a heavy price in adverse defamation judgments.
A S U B S E Q U E N T S U P R E M E C O U R T D E C I S I O N casts a shadow on Butts and all

of the related celebrity cases.
On December 15, 1967, Time magazine reported the Florida divorce of
Russell A. Firestone Jr., heir to the tire fortune, from Mary Alice Sullivan
Firestone, a former Palm Beach schoolteacher, “on grounds of extreme cruelty
and adultery.” The court decree on which the story was based read in part:
According to certain testimony on the part of [Russell,] extramarital escapades of

[Mary Alice] were bizarre and of an amatory nature which would have made Dr.
Freud’s hair curl. Other testimony, in [Mary Alice’s] behalf, would indicate that
[Russell] was guilty of bounding from one bed partner to another with the erotic
zest of a satyr. The court is inclined to discount much of the testimony as unreliable.
Nevertheless, it is the conclusion and finding of the court that neither party is
domesticated, within the meaning of that term as used by the Supreme Court of
Florida. . . .
[I]t is abundantly clear from the evidence of marital discord that neither of the
parties has shown the least susceptibility to domestication, and that the marriage
should be dissolved.17
Mrs. Firestone sued Time magazine for defamation in charging her with
extreme cruelty and adultery. The Supreme Court upheld her right to sue as a
private person. Its 1976 opinion held that she was not a public figure. Mrs.
Firestone “did not assume any role of especial prominence in the affairs of
society, other than perhaps Palm Beach society, and she did not thrust herself to
the forefront of any particular controversy in order to influence the resolution
of issues involved in it.”18 The Court observed that Mrs. Firestone was com-
pelled to go to court to litigate the issues in her marital dispute, and her partici-
pation in the case was not voluntary. That the case may have been of great
public interest was not dispositive. Nor was the fact that Mrs. Firestone had
held a few press conferences during the pendency of the case; she did not
attempt to use them to influence the outcome of the trial or to thrust herself
into an unrelated dispute. Whereas some litigants may be legitimate public
figures, the Court expressed concern that the majority of litigants will be “drawn
into a public forum largely against their will in order to attempt to obtain the
only redress available to them or to defend themselves against actions brought
by the State or by others. [They should not] substantially forfeit that degree of
protection which the law of defamation would otherwise afford them simply by
virtue of their being drawn into a courtroom.”19
The case was remanded to afford Mrs. Firestone an opportunity to prove
fault on the part of Time.
A F E W L O W E R C O U R T C A S E S H AV E D I S P L AY E D the more disciplined approach

of Firestone in dealing with celebrities. In Braun v. Flynt,20 Jeannie Braun per-
formed in a novelty act, treading water in a pool and holding up a baby bottle
filled with milk to induce a pig to dive into the pool and feed from the bottle.
Flynt published Chic magazine, devoted to female nudity. The magazine carried
a picture of Braun and the pig amid other stories pertaining to sex and nudity.
The picture had been obtained without Braun’s consent. A court of appeals
upheld a judgment for Braun on the ground that Chic had showed her in a false
light in associating her with the magazine’s theme of sex and nudity. The court
held that Braun was not a public figure despite the fact that “she voluntarily
undertook a public job.”21 She was involved in no public controversy and influ-
enced no important public issues. She “cannot be said to have relinquished
interest in protecting her name and reputation by force of her limited role as an
entertainer.”22
In Wheeler v. Green,23 Wheeler was a well-known trainer of Appaloosa race-
horses. Defendants—former employers of Wheeler—made a number of de-
famatory charges against him, including dishonesty, bribery, and forgery. In
affirming a substantial defamation judgment, an Oregon court ruled that Wheeler
was not a public figure despite the fact that he was a prominent personality to
those following Appaloosa horse racing and despite the fact that a current con-
troversy concerned the rules and practices of the sport and the potential for
abuse and dishonesty. There was “no evidence that plaintiff had attempted in
any way to influence that controversy or that he had taken any part in it whatso-
ever.”24 The court found Butts to be inconsistent with subsequent Supreme
Court rulings such as Firestone: “[O]ne does not become a public figure simply
because of general public interest in one’s lifestyle and personal activities or
because one’s job happens to be one in which widespread publicity is given to
outstanding performers.”25
Braun and Wheeler suggest the right approach: follow the Waldbaum meth-
odology and identify a public controversy, determine the celebrity’s relation to
that controversy, then ascertain whether the defamation is germane to the
celebrity’s participation in the controversy.26 Such an approach would not im-
pede critical commentary on the public performances of athletes and entertain-
ers; such commentary already receives ample protection—even when unusually
acerbic—under the shelter afforded to opinion not implying falsity as to facts.
Nor is it likely that the wells of gossip will run dry. Some gossip is fostered by
public personalities in their own self-interest; other gossip will be disseminated
whenever the publisher believes the benefits in anticipated patronage for its
media outlet outweigh the risks of possible defamation liability. (The issues
posed by gossip are considered further in Chapter 14.)
Courts sometimes reason that a plaintiff sought publicity and that, having
obtained unfavorable publicity, he is barred from complaining about the un-
happy consequences.27 The courts’ reasoning is unsound. In the normal course
of pursuing a livelihood, publicity may be essential. Most legitimate enterprises
require patronage; advertising and other means of attracting customers are
commonplace. In fields of athletic and artistic endeavor, including show busi-

ness, publicity may be both essential and inevitable. No special weight should
attach to an individual’s effort to attract attention, whether he does so as a
matter of normal business practice or as a matter of individual idiosyncrasy.
The fact that a person colors his hair purple or wears a clown costume may
invite attention and comment; but it does not invite an assault, whether the
attack is physical in nature or in the form of an actionable defamation.28
O N T H E P R E C I S E I S S U E I N F I R E S T O N E —the public figure status of litigants

and witnesses—lower court decisions have been erratic. Although litigants and
witnesses are typically excluded from public figure status,29 exceptions are not
hard to find.
In Street v. National Broadcasting Co.,30 Street had been the sole complain-
ant and principal witness in the famous rape trial of the Scottsboro boys (south-
ern blacks) in the 1930s. NBC had depicted her as a whore, a perjurer, and one
eager to see the defendants electrocuted. The court of appeals ruled that Street
was a public figure. It relied on the extensive public controversy surrounding
the Scottsboro case, in which Street had played a prominent role, and on Street’s
extrajudicial statements, in which she had expressed her view of the case outside
the courtroom. A number of similar cases have come to the same conclusion.31
In McBride v. Merrell Dow Pharmaceuticals,32 McBride, a physician, testi-
fied as an expert witness in litigation concerning Bendectin, said to be a cause
of birth defects. Science magazine carried a story containing an allegedly libel-
ous statement about the fee McBride had received for his testimony. The court
of appeals held that McBride was a public figure, having voluntarily entered the
ongoing public controversy about Bendectin by giving testimony in both private
litigation and before the Food and Drug Administration.33
The decision in McBride is sound. McBride had assumed a prominent role
in a major public controversy. Street is more dubious, although probably sound.
Perhaps a witness should be compelled to confine her comments to the court-
room if she is to avoid being classified as a public figure. But that is a rigid and
unrealistic requirement to apply to a layperson embroiled in a legal controversy.
Most decisions of this genre have been premised on extensive extrajudicial
efforts to generate publicity initiated by the person ultimately held to be a
public figure, suggesting that the courts may not confer public figure status too
freely. Arguably, the witness in Street crossed the line.
An appropriate balance is suggested by a 1986 Vermont opinion. John S.
Burgess was the treasurer and a trustee of Mark Hopkins College. He was
summoned to give testimony before a grand jury investigating embezzlement

charges against the college president. Defendant published a defamatory ac-
count of the grand jury appearance, and Burgess sued for damages.34 The Ver-
mont Supreme Court observed that the appearance of Burgess before the grand
jury did not make him a public figure. As to publicity about the appearance:
“Responding to press inquiries does not necessarily mean that a person be-
comes a public figure with respect to the subject matter discussed. . . . A person
must attempt to use the press to shape the outcome of, or increase his or her
influence in, a specific public controversy to lose the protections afforded pri-
vate individuals.”35
The case was remanded to resolve questions as to the extent to which
Burgess initiated the publicity reflected in press coverage of his grand jury
appearances.
T H E A P P R O A C H I N I T I AT E D B Y B U T T S , assigning public figure status based on

the plaintiff ’s position in society, is unsound. The result is to confer public
figure status on a host of athletes, entertainers, and social celebrities who have
no necessary connection to public discussions of social significance. If the indi-
vidual is participating in a government program of some sort, the methodology
of Chapter 6 is available (by analogy to public employees). If the individual
takes a stand on one or more public issues, the methodology of Chapter 7 can
be implemented. If neither is the case, there is no First Amendment basis for
holding that a prominent personality should have a lesser claim to protection
from defamation than any other member of society.
The same holds true for participants in litigation. As long as they confine
their efforts to the courtroom, with minimal out-of-court statements, they are
not public figures. They cross the line only when they seek to shape a public
discussion, or influence its outcome, by statements exogenous to the conduct of
legal proceedings.
THE FRAME-UP OF OFFICER NUCCIO 61
N I N E
THE FRAME-UP OF OFFICER NUCCIO
G E O R G E R O S E N B L O O M D I S T R I B U T E D nudist magazines to newsstands in the

Philadelphia area. On October 1, 1963, while making a delivery, he was ar-
rested for selling obscene literature. Three days later the police seized a stock of
books and magazines at Rosenbloom’s home and warehouse; again, Rosenbloom
was arrested. Following the second arrest the police contacted a local radio
station owned by Metromedia, and, based on information furnished by the
police, the station aired a broadcast describing Rosenbloom as “a main dis-
tributor of obscene material in Philadelphia.” In this and other broadcasts,
Rosenbloom was grouped with “smut merchants,” “girlie-book peddlers,” and
participants in the “smut literature racket.” In fact, Rosenbloom’s magazines were
not obscene, and he was acquitted of all charges. He sued Metromedia for defama-
tion and recovered $250,000 in a U.S. district court. That judgment was re-
versed by the Court of Appeals for the Third Circuit, and in 1971 the Supreme
Court agreed with the court of appeals in rejecting Rosenbloom’s claim.1
Under Pennsylvania law, Metromedia was privileged to report on official
actions of the police. But that privilege had been abused in this case for want of
reasonable care by Metromedia, according to the decision of the district court.
The Supreme Court ruled that Pennsylvania law did not afford the media the
full measure of protection required by the First Amendment and held that to
recover, Rosenbloom had to prove actual malice in accordance with the stan-
dard of New York Times. Metromedia conceded that Rosenbloom was neither a
public official nor a public figure. But in a plurality opinion by Justice Brennan,
Rosenbloom’s lack of position or prominence was held not to be controlling:
The community has a vital interest in the proper enforcement of its criminal
laws, particularly in an area such as obscenity where a number of highly
important values are potentially in conflict: the public has an interest both in
seeing that the criminal law is adequately enforced and in assuring that the
law is not used unconstitutionally to suppress free expression. Whether the
person involved is a famous large-scale magazine distributor or a “private”
businessman running a corner newsstand has no relevance in ascertaining
whether the public has an interest in the issue. We honor the commitment to
robust debate on public issues . . . by extending constitutional protection to
all discussion and communication involving matters of public or general
concern, without regard to whether the persons involved are famous or
anonymous.2
Only three justices concurred in the plurality opinion. Two justices con-
curred on separate grounds.3 Three justices dissented.4
The reign of Rosenbloom proved short. Although the decision continues to
influence state law doctrines in eight states,5 the U.S. Supreme Court repudi-
ated Rosenbloom as a federal constitutional standard three years after the ruling.
A C H I C A G O P O L I C E M A N N A M E D R I C H A R D N U C C I O was convicted of the

1968 murder of a youth named Ronald Nelson. The Nelson family retained
Elmer Gertz, an attorney, to represent them in civil litigation against Nuccio. In
that capacity Gertz attended a coroner’s inquest and filed an action for damages
against Nuccio, but he played no role in the criminal proceeding in which
Nuccio was convicted. Robert Welch published American Opinion, a monthly
magazine voicing the views of the John Birch Society. In 1969 an article in that
magazine alleged that Nuccio’s murder trial had been part of a communist
conspiracy to discredit the local police. It stated that Gertz had arranged Nuccio’s
“frame-up,” falsely implied that Gertz had a criminal record, and falsely labeled
him a “Communist-fronter.” Gertz sued for defamation and recovered a jury
verdict for $50,000. But the courts below, following Rosenbloom, refused to
impose liability on the publisher because it had been engaged in discussion of
an issue of public concern and Gertz had failed to prove actual malice.6 The
U.S. Supreme Court reversed.
The Court repudiated Rosenbloom. Writing in 1974, it rejected a test that
turned on the nature of the issue under discussion because such a test would
abridge to an unacceptable extent the legitimate state interest in enforcing a
legal remedy for defamatory falsehood injurious to the reputation of a private
individual.7 Further, the Court deplored the prospect of having “state and fed-
eral judges . . . decide on an ad hoc basis which publications address issues of
general or public interest and which do not—to determine . . . what informa-

tion is relevant to self-government.”8 (As will become apparent in Chapter 14,
this aspect of the Court’s reasoning has not withstood the test of time.)
In any case, the Court took a radically different approach from the one
employed in Rosenbloom. It focused on the status of the allegedly defamed indi-
vidual and inquired whether he was a public person—one who, “by reason of
the notoriety of [his] achievements or the vigor and success with which [he
seeks] the public attention,”9 is correctly classified as a public figure. Such
persons are properly subject to the actual malice requirement of New York Times
v. Sullivan. They are in a better position to resort to self-help to contradict the
lie or correct the error because they usually enjoy significantly greater access to
channels of effective communication and hence have a more realistic opportu-
nity to counteract false statements than private individuals normally enjoy. More
important, a compelling normative consideration underlies the distinction be-
tween public and private defamation plaintiffs. An individual who seeks or
attains public stature “must accept certain necessary consequences of that in-
volvement in public affairs. He runs the risk of closer public scrutiny than
might otherwise be the case.”10
The Court conceded that, hypothetically, “it may be possible for someone
to become a public figure through no purposeful action of his own, but the
instances of truly involuntary public figures must be exceedingly rare.”11 The
Court did not elaborate, nor did it provide any empirical support for a seem-
ingly empirical observation. It continued:
For the most part, those who attain [public figure] status have assumed roles
of especial prominence in the affairs of society. Some occupy positions of
such power and influence that they are deemed public figures for all
purposes. More commonly, those classed as public figures have thrust
themselves to the forefront of particular public controversies in order to
influence the resolution of the issues involved. In either event, they invite
attention and comment.
Even if the foregoing generalities do not obtain in every instance, the
communications media are entitled to act on the assumption that public
officials and public figures have voluntarily exposed themselves to increased
risk from defamatory falsehood concerning them. No such assumption is
justified with respect to a private individual. He has not accepted public
office or assumed an “influential role in ordering society.”12
As regards the case at hand, the Court concluded that Elmer Gertz was a
private person and could recover on a showing of negligence. Robert Welch had
argued that Gertz’s appearance at the coroner’s inquest rendered him a de facto
public official. The Court rejected the argument because it “would sweep all
lawyers under the New York Times rule as officers of the court and distort the
plain meaning of the ‘public official’ category beyond all recognition.”13
The Court also rejected the argument that Gertz was a public figure for all
purposes. He had been active in community and professional affairs, he had
served as an officer of local civic groups and of various professional organiza-
tions, he had published several books and articles on legal subjects—and in
consequence he was well-known in some circles. But “he had achieved no gen-
eral fame or notoriety in the community.”14 None of the prospective jurors
called at the trial had heard of Gertz prior to the litigation, and there was no
proof that this response was atypical of the local population. “Absent clear
evidence of general fame or notoriety in the community, and pervasive involve-
ment in the affairs of society, an individual should not be deemed a public
personality for all aspects of his life.”15
Finally, Gertz was not a public figure as a result of his participation in the
controversy giving rise to the defamation. He played a minimal role in the coroner’s
inquest, related solely to his representation of a private client. He took no part
in the criminal prosecution of Nuccio. And he never discussed either the crimi-
nal or the civil litigation with the press. “He plainly did not thrust himself into
the vortex of this public issue, nor did he engage the public’s attention in an
attempt to influence its outcome.”16
The methodology of the Gertz opinion, which has had a major impact in
subsequent applications of constitutional privilege, is noteworthy for a star-
tling omission. Constitutional privilege is ostensibly concerned with protecting
free expression by the press and others. But nowhere in the Gertz opinion is
there an analysis of the article that gave rise to the litigation. That article
charged that Nuccio’s murder trial was part of a communist conspiracy and
that Gertz, as the architect of the Nuccio “frame-up,” was an important par-
ticipant in that conspiracy. Had the charges been true, Gertz would have been
a party to a gross miscarriage of justice as regards Officer Nuccio, as well as a
participant in a monstrous perversion of the state’s system of criminal justice.
In such circumstances a decision by Gertz to remain in the background should
not come as a surprise. That the charges were false does not disqualify the story
from protection under New York Times v. Sullivan. The Court should have
considered the classification of Gertz in light of the article in question assuming
that the charges alleged were true. From that perspective Gertz could not be so
lightly dismissed as a private person; he would seem to qualify as that “exceed-
ingly rare” creature—the “involuntary public figure”—who attains that status
without seeking publicity. He was alleged to have been a party to an abuse of the
state’s criminal justice system, the most oppressive instrument at the government’s
command.
The Court’s reluctance to classify Elmer Gertz as a public figure is under-
standable. If lawyers must assume the risk of unbridled defamation in the rep-
resentation of clients, they may be highly selective in the clients they choose to
represent—shunning the unpopular client or cause, an impact of constitutional
dimension in cases of persons accused of crimes. The “chilling effect” on repre-
sentation would replace the “chilling effect” on speech. This ground was articu-
lated in a concurring opinion17 but was not adopted by the Court. Perhaps the
Court was repelled by the enormity of the false accusations leveled at Gertz. On
remand, Gertz proved actual malice and recovered $300,000 in punitive dam-
ages, as well as $100,000 in compensatory damages.18
L O W E R C O U R T S H AV E G E N E R A L L Y F O L L O W E D G E R T Z in declining to hold
lawyers to be public figures simply because they represent controversial clients
or participate in controversial cases.19 But conduct exceeding bare representa-
tion often elicits a contrary conclusion.
In Marcone v. Penthouse International,20 a Penthouse article charged that Frank
Marcone, an attorney, had engaged in drug trafficking. When Marcone sued for
defamation, the court of appeals held that he was a public figure for purposes of
discussing the public issue of drug trafficking because (1) he had been indicted for
drug trafficking (although the indictment had been dismissed), (2) he had repre-
sented motorcycle gang members charged with drug trafficking, and (3) he had
socialized with the same gang members, sometimes joining them on weekend
trips. The court recognized that the first two grounds, standing alone, were insuffi-
cient; but the third ground was viewed as tipping the balance in favor of public
figure status.21 Why Marcone’s choice of social companions should matter was not
explained. If legal representation of a controversial client does not confer public
figure status, it is difficult to see why Marcone should have been elevated to that
status on the basis of the trivial additional factors relied upon by the court.
More frequently, lawyers have been held to be public figures when they
seek media attention in connection with controversial cases in which they are
participants or when they engage in activities beyond the scope of professional
representation.22 For example, in Kurth v. Great Falls Tribune Co.,23 Sidney
Kurth went beyond the bounds of representing MMI, his controversial client.
He was an officer of the company, he raised funds on its behalf, and he sought
to secure loans for MMI. Whether Kurth was a public figure by reason of his
activities on MMI’s behalf was held to be an issue for the jury.24
Attorneys active in controversial matters are at risk whenever they venture

beyond the exercise of professional responsibilities and make public statements,
grant interviews, or otherwise seek to generate publicity. They may then be
characterized as public figures, seeking to influence the course of public opin-
ion, and may find themselves confronted with the actual malice requirement in
the event they are defamed.
G E R T Z I S P R O B A B L Y T H E O N L Y T E N A B L E S O L U T I O N to an extremely delicate
problem. Unless lawyers are free to represent unpopular clients and unpopular
causes without fear of ill-constrained defamatory attacks, the efficacy of the
judicial system may be impaired. On occasion, the immunity conferred upon a
lawyer may dampen discussions of improprieties pertaining to his or her role in
the litigation itself (as arguably was the case in Gertz). But the balance struck by
the Supreme Court seems correct.
Of course, the special solicitude for legal representation ceases when the
lawyer is not acting in a legal capacity. Statements outside the scope of a legal
proceeding or actions beyond the scope of legal representation gain no special
protection against the rules generally applicable to public figure status.
THE GOLDEN FLEECE OF THE MONTH AWA R D 67
T E N
THE GOLDEN FLEECE OF THE MONTH AWARD
D R . R O N A L D H U T C H I N S O N WA S A R E S E A R C H S C I E N T I S T who had received

grants from the federal government for the study of signs of aggression in mon-
keys. In April 1975 Senator Proxmire gave Dr. Hutchinson his “Golden Fleece
of the Month Award” for wasting government funds on worthless research. Dr.
Hutchinson sued for defamation, citing inaccuracies in Proxmire’s description
of his work. Although Dr. Hutchinson was a state employee who worked in a
state hospital, the Supreme Court declined to pass on whether he was a public
official because that issue had not been reached by the courts below. The court
of appeals had classified Dr. Hutchinson as a public figure, citing his “long
involvement with publicly funded research, his active solicitation of federal and
state grants, the local press coverage of his research and the public interest in
the expenditure of public funds on the precise activities in which he voluntarily
participated.”1 Writing in 1979, the Supreme Court disagreed:
On this record, Hutchinson’s activities and public profile are much like those of
countless members of his profession. His published writings reach a relatively small
category of professionals concerned with research in human behavior. . . .
Hutchinson did not thrust himself or his views into public controversy to
influence others. Respondents . . . point to concern about general public expendi-
tures. But that concern is shared by most and relates to most public expenditures;
it is not sufficient to make Hutchinson a public figure. If it were, everyone who
received or benefitted from the myriad public grants for research could be
classified as a public figure.2
The Court also observed that Dr. Hutchinson “did not have the regular and
continuing access to the media that is one of the accouterments of having
become a public figure.”3 Access for Hutchinson did occur following the
Proxmire award, but that was held to be irrelevant: “[T]hose charged with
defamation cannot, by their own conduct, create their own defense by making
the claimant a public figure.”4
Hutchinson is a baffling decision. Without a nod of recognition, the Su-
preme Court resurrected the law of seditious libel, at least as regards public
expenditures. If the government is to be challenged for having squandered tax-
payer money, how is that challenge to be mounted except by challenging the
expenditures themselves? And for every expenditure there must be a recipient.
If recipients of government funds can sue for libel, challenging charges of waste-
ful government expenditures without complying with New York Times, they can
invoke the law of defamation to protect the government in its wasteful activi-
ties. Hutchinson could recover on a showing that Senator Proxmire had been
negligent in mischaracterizing Hutchinson’s research.
The Supreme Court no doubt was concerned about classifying as public
figures the millions of Americans who receive public funds in one way or an-
other. Clearly, such persons are not public figures as regards their private lives
and everyday activities. But if the criticism pertains to the propriety of the
government expenditure and the alleged defamation is integral to the criticism,
then New York Times must apply or the government—as well as the recipient—
is immunized from effective public review.5
S O M E L O W E R C O U R T S H AV E F O L L O W E D H U T C H I N S O N in holding that re-

cipients of public funds or benefits are not public figures. In Arctic Co. v.
Loudoun Times Mirror,6 the county water authority retained Iroquois Research
Institute—a private firm—to inventory and evaluate archaeological, historical,
and architectural resources on Lowes Island, site of a proposed water facility.
Iroquois had performed numerous such surveys for others. The Times Mirror
criticized the selection of Iroquois, citing its poor reputation and performance.
On suit by Iroquois for defamation, the court of appeals ruled that Iroquois was
not a public figure: it was not generally known in the community, it did not
press itself into the public controversy surrounding the use of Lowes Island, it
“merely performed a narrowly-defined professional service in a highly technical
field.”7 But how does the press criticize the county water authority for having
made a bad choice in selecting Iroquois without recounting the reasons that
made Iroquois a bad choice?8
Other cases reaching a similar result have stressed the routine nature of the
goods or services provided by the supplier in holding that the supplier was not
a public figure.9 Some seem to have gone a long way toward affording immunity
to the government. For example, in Blake v. Gannett Co.,10 Gannett ran a series
of articles critical of the lending policies of the Farmers Home Administration
(FHA), a federal agency. P. L. Blake was a major borrower under the govern-
ment loan program, and Gannett publicized the extent of his borrowings and
his alleged violations of agency regulations. On Blake’s suit for defamation, a
Mississippi court held that Blake was not a public figure. He had not thrust
himself into any public controversy and had not assumed a role of public promi-
nence, nor did he have ready access to the media: “If . . . borrowing money
from a federally funded program makes a person a limited public figure, the
group would be extremely large.”11 Perhaps so. But how are the FHA’s govern-
ment lending practices to be criticized without pointing to specific instances of
impropriety pertaining to identifiable borrowers?
Numerous cases take a contrary view. Some are easily reconciled with
Hutchinson because the recipient of government benefits was also active in a
public debate. In Fitzgerald v. Penthouse International,12 Penthouse published an
article allegedly defaming James Fitzgerald, who was developing military and
nonmilitary uses of dolphins. The court of appeals found an antecedent public
controversy concerning military applications of trained dolphin technology and
cited Fitzgerald’s active participation in that controversy through public speeches
and publications and television appearances. It ruled that Fitzgerald was a pub-
lic figure because he had “sought to influence the outcome of the controversy
through his . . . public statements.”13
Other decisions take a more expansive view as regards public figure status.
In Dombey v. Phoenix Newspapers, Inc.,14 Dale Dombey was an insurance agent
of record for the county for life and health insurance and was the plan adminis-
trator for deferred compensation plans involving county workers. Defendant
newspaper published false and defamatory articles about Dombey’s activities in
these positions. An Arizona court held that Dombey was a public figure.15
Dombey had sought and received the remunerative positions he held; he had
made recommendations resulting in substantial expenditures from the public
treasury and significant investments of private funds originating with public
employees. “By assuming the position that he held, Dombey invited public
scrutiny and should have expected that the manner in which he performed his
duties would be a matter of legitimate public concern, exposing him to public
and media attention.”16 In Riverview Residential Treatment Facilities, Inc. v.
WWMT–Channel 3,17 Riverview was a not-for-profit corporation that treated
troubled teenagers referred to it by state agencies. A television station broadcast
stories critical of Riverview and its director. A Michigan court held that both
were public figures.18 The director was a person of influence in resolving public
issues; his behavior must be subject to scrutiny, or “the First Amendment could
be effectively repealed by ‘privatization.’ ”19
Some of these cases turn on whether a public controversy antedated the
defamation in issue, an extremely troublesome approach.20 The distinction be-
tween those who initiate a public controversy and those who follow in their
wake is perverse.21 If government misconduct is at issue, the pioneering jour-
nalist should not receive less protection than those who come later. But that is
the strong implication of many decisions bearing on this issue.22
H U T C H I N S O N A N D R E L AT E D C A S E S A R E H A R D T O R E C O N C I L E with the Su-

preme Court’s 1970 decision in Greenbelt Cooperative Publishing Ass’n v. Bresler.23
Charles Bresler was a prominent real estate developer in Greenbelt, Maryland.
In addition, he was a member of the state legislature from a neighboring dis-
trict. In 1965 Bresler was engaged in negotiations with the city of Greenbelt:
Bresler wanted zoning variances for some land he owned; the city wanted to
acquire other land Bresler owned. The negotiations led to a city council meeting
at which some contested Bresler’s demands. He was accused of “blackmail.”
Greenbelt Cooperative Publishing repeated the accusation, and Bresler sued for
libel.
Bresler prevailed in the trial court. The Supreme Court reversed, holding
that Bresler was a public figure: “Bresler was deeply involved in the future
development of the city of Greenbelt. He had entered into agreements with the
city for zoning variances in the past, and was again seeking such favors to
permit the construction of housing units of a type not considered in the original
city plan.”24 In addition, the blackmail allegation was held to be nonactionable
opinion in the form of rhetorical hyperbole.25 (More on this point in Chapter
17.)
The Supreme Court accorded no weight to the fact that Bresler happened
to be a member of the state legislature.26 It confined its attention to Bresler’s
status as an applicant for government favors. Accordingly, although the receipt
of government benefits may not be enough to render a recipient a public figure,
as in Hutchinson, applicants for government assistance or approval may suffer a
different fate if they encounter opposition or critical comment.
R E S U L T S IN A C C O R D W I T H B R E S L E R have been reached in lower court decisions

involving applications by real estate developers seeking regulatory approvals.27
But the principle is applied more broadly. In Continental Cablevision v. Storer

Broadcasting Co.,28 Continental and Storer were competing applicants for a
cable television franchise in Florissant, Missouri. Continental made derogatory
public statements about Storer’s qualifications. Storer’s defamation claim against
Continental was rejected because Storer was held to be a public figure. The
district court observed that cable television had become a major factor in the
dissemination of information and concluded that Storer had voluntarily thrust
itself into a matter that had been a public controversy in Florissant prior to the
alleged defamation.29 In Associated Financial Corp. v. Financial Services Informa-
tion Co.,30 Associated Financial was raising private investment capital for low-
income housing. Financial Services published an article critical of Associated
Financial. The district court held that Associated Financial was a public figure:
a controversy existed over tax credits for low-income housing, Associated Fi-
nancial was prominent in the field and active in seeking to influence govern-
ment policy, and it had ready access to the media.31
But there are decisions to the contrary. In Jones v. Himstead,32 a Massachusetts
court refused to premise public figure status on Jones’s applications for govern-
ment permits and government funds in connection with his business dealings.
Similarly, in Novi Ambulance v. Farmington Observer,33 the ambulance service was
held not to be a public figure simply because it bid on government contracts.
But several cases have held newspapers to be public figures in connection with
their efforts to obtain legal advertising contracts from local governments.34
The difference between Hutchinson and Bresler seems to turn on the point
at which the adverse publicity occurs. If, as in Bresler, a dispute arises prior to
a government decision, the courts are more likely to discern an antecedent
public controversy to which the defamation is germane. But criticism after the
decision, as in Hutchinson, may founder on the courts’ reluctance to allow the
defaming party to create a public controversy by the defamation itself—a seem-
ingly open-ended invitation to defamatory falsehood. The position of the courts
may be soundly premised in some circumstances, but not in situations in which
(1) the “sting” of the defamation is a charge of government impropriety and (2)
that impropriety cannot be discussed without implicating the seeker or recipi-
ent of the government largesse at issue. All such cases should be governed by the
actual malice rule. That is the bedrock principle of New York Times v. Sullivan.
E L E V E N
THE RELUCTANT SOVIET AGENT
D U R I N G 1957 A N D 1958 A S P E C I A L F E D E R A L G R A N D J U R Y in New York

City conducted an investigation into the activities of Soviet intelligence agents
in the United States. As a result of the investigation, Myra and Jack Soble were
arrested in 1957 on charges of spying; they later pleaded guilty to espionage
charges. In the ensuing months the grand jury focused on other participants in
a suspected Soviet espionage ring, resulting in further arrests, convictions, and
guilty pleas.
Ilya Wolston, a nephew of Myra and Jack Soble, resided in Washington,
D.C., at the time of the grand jury proceedings. He was interviewed several
times by agents of the Federal Bureau of Investigation and traveled to New
York on several occasions pursuant to grand jury subpoenas. On July 1, 1958,
however, Wolston failed to respond to a grand jury subpoena; he had tried but
failed to persuade law enforcement authorities not to require him to travel to
New York for interrogation because of his depressed mental condition. Wolston
was cited for criminal contempt of court. At the contempt hearing Wolston’s
wife, who was pregnant, was called to testify as to Wolston’s mental condition
at the time of the return date of the subpoena. After she became hysterical on
the witness stand, Wolston agreed to plead guilty to the contempt charge. He
received a one-year suspended sentence and was placed on probation for three
years, conditioned on his cooperation with the grand jury in any further in-
quiries regarding Soviet espionage.
During the six-week period between Wolston’s failure to appear before the
grand jury and his sentencing, fifteen stories appeared in newspapers in New
T H E R E L U C TA N T S O V I E T A G E N T 73
York and Washington, D.C., discussing these events. The flurry of publicity
then subsided; Wolston returned to the private life he had led prior to the
issuance of the grand jury subpoena.
In 1974 the Reader’s Digest Association published a book critical of
government responses to Soviet espionage entitled KGB, the Secret Work of
Soviet Agents. In the book Ilya Wolston was identified as a “Soviet agent”—
one of a list of “Soviet agents who were convicted of espionage or falsifying
information or perjury and/or contempt charges following espionage indict-
ments, or who fled to the Soviet bloc to avoid prosecution.” Wolston sued
Reader’s Digest for defamation, pointing out that although he had been con-
victed of criminal contempt, he had never been indicted for espionage and had
not fled to the Soviet bloc to avoid prosecution. He denied that he had been a
Soviet agent.1
In a 1979 opinion the Supreme Court refused to classify Wolston as a
public figure. Wolston had not voluntarily thrust himself into the forefront of
the public controversy surrounding the investigation of Soviet espionage in the
United States. He had not “engaged the attention of the public in an attempt to
influence the resolution of the issues involved. . . . He did not attempt to arouse
public sentiment in his favor and against the investigation.”2 Wolston “played
only a minor role in whatever public controversy there may have been concern-
ing the investigation of Soviet espionage.” His citation for contempt did not
confer public figure status on him.3
The Court accepted arguendo that the pertinent public controversy “in-
volved the propriety of the actions of law enforcement officials in investigating
and prosecuting suspected Soviet agents.”4 Notwithstanding criticism of these
government activities by Reader’s Digest, Wolston remained a private person
because he had sought to eschew the limelight. But isn’t that to be expected of
persons engaged in espionage? The Court also placed weight on Wolston’s “mi-
nor role.” But a network of Soviet agents, some playing minor roles, might
nonetheless have been effective in its espionage activities.
The decision in Wolston, like the decision in Hutchinson, protects the gov-
ernment against adverse commentary by allowing the beneficiary of govern-
ment action or inaction (here a beneficiary of alleged laxity in law enforcement)
to sue for defamation and to do so unconstrained by New York Times. Ilya
Wolston should have been classified as an involuntary public figure whose iden-
tity and actions were appropriate aspects of a published critique of government
responses to Soviet espionage.5
H O W D O E S W O L S T O N C O M PA R E T O R O S E N B L O O M , discussed in Chapter
9?6 Could Rosenbloom have been decided in favor of the broadcaster on the
ground that Rosenbloom, like Wolston, was the target of government enforce-
ment efforts and thus an involuntary public figure? Under this approach the
media would have been privileged to accuse Rosenbloom of distributing ob-
scene literature—even though the charge was false—subject only to the require-
ment of the actual malice rule. Is this a viable approach to Rosenbloom?
The answer is no. Wolston involved a criticism of government law enforce-
ment as regards Soviet espionage, and Wolston had been identified as one of
the Soviet agents the government had failed to stop. But Rosenbloom did not
involve a critique of government. Indeed, the stories at issue supported the
government’s enforcement efforts and vilified Rosenbloom and others in “the smut
literature racket.” The case would have posed a different question if the stories
had attacked the government either for failing to crack down on supposed
lawbreakers like Rosenbloom or for invoking the processes of the criminal
justice system improperly against law-abiding citizens like Rosenbloom. The
critical point is the “sting” of the story. If the government is under attack, New
York Times should apply.
M O S T C A S E S I N V O L V I N G T H E A P P R E H E N S I O N O F S U S P E C T S or the prosecu-
tion of persons accused of crime hold that the suspect or accused is not a public
figure.7 But exceptions are common. The most obvious are instances in which
the accused seeks to gain favorable publicity by addressing the media outside
the courtroom.8 The accused then becomes a public figure by reason of his
appeal to the public—essentially the same approach as in the case of publicity-
seeking litigants, witnesses, and lawyers (see Chapters 9 and 10).
Sometimes the notoriety associated with a crime suffices to confer public
figure status. In Ruebke v. Globe Communications,9 Arnold Ruebke was con-
victed of a triple murder. In a defamation action relating to his role in the
crime, the Kansas court held that Ruebke was a public figure because the crime
was of a “particularly heinous nature” and generated a public controversy marked
by intensive media coverage.10 In Van Straten v. Milwaukee Journal Newspaper-
Publisher,11 Dennis Van Straten, a prison inmate, had attempted suicide by
slashing his wrists. He claimed he had been defamed by newspaper stories
stating that he was a homosexual, that he had AIDS, and that he had endan-
gered prison guards by splattering blood on them. The Wisconsin court ruled
that Van Straten was a public figure because he had placed himself in the public
limelight by choosing to slit his wrists, thereby making jailers fearful of con-
tracting AIDS. The court held that it was irrelevant that Van Straten had never
intended to draw public attention to himself.12
The reasoning in Van Straten is similar to an approach sometimes taken in
cases involving allegations of affiliation with organized crime. In Rosanova v.
Playboy Enterprises,13 Louis Rosanova sued for libel when Playboy referred to
him as a “mobster.” The court of appeals held that Rosanova was a public
figure. He had been the subject of newspaper articles and other media reports
of his activities, including reported associations and activities concerning orga-
nized crime.14 Rosanova could not argue that he did not choose to become a
public figure; it was sufficient that he had “voluntarily engaged in a course of
conduct that was bound to invite attention and comment.”15 Playboy gained the
protection of New York Times as a result of the extensive preexisting publicity
about Rosanova. Rosanova might have been in a better position if he had sued
the initial adverse publicist (that, at least, is the implication).
A similar theme was expressed in Scottsdale Publishing, Inc. v. Superior
Court.16 Roy Romano, testifying in exchange for immunity, revealed an exten-
sive criminal career. Scottsdale Publishing ran an article accusing Romano of
participating in a major murder. On Romano’s suit for defamation, the Ari-
zona court held that Romano was a public figure. He was central to an issue of
great public concern, testifying about organized crime in Arizona. He had
voluntarily exposed himself to publicity; that was the price he paid for immu-
nity. He also volunteered by choosing to pursue a career of crime (as distin-
guished from engaging in isolated criminal acts). The article was germane to
Romano’s public figure status—although beyond the scope of his testimony—
because Romano ran the risk “that the public would critically scrutinize the
costs and benefits of the immunity agreement that the state extended him.
What kind of man had the state allied with? . . . Were his revelations thor-
ough?”17 The last point is the critical one. All criminals engage in voluntary
behavior in the commission of crimes that may lead to subsequent prosecution.
But the article in issue in Scottsdale could be viewed as a critical commentary on
law enforcement practices.
In regulatory proceedings, courts evince an even greater readiness to hold
that targets of law enforcement efforts are public figures. In Trans World Ac-
counts, Inc. v. Associated Press,18 respondent Trans World Accounts (TWA) was a
debt collection agency. The Federal Trade Commission (FTC) filed a complaint
and issued a press release charging TWA with use of two deceptive practices.
The Associated Press erroneously charged TWA with additional deceptive prac-
tices (charged with respect to other debt collection agencies but not with re-
spect to TWA). On TWA’s suit for defamation, the district court ruled that
TWA was a public figure. By reason of being named by the FTC, TWA “was
clearly drawn into a particular controversy having its origins in [TWA’s] own
conduct and activities.”19 The FTC’s use of publicity was approved as a legiti-
mate means of protecting the public. Similarly, in ELM Medical Laboratory v.
RKO General,20 government officials released a “health alert” warning that ELM
had misread a number of Pap tests in the previous four years. RKO broadcast
several programs on the matter, some of which allegedly defamed ELM. A
Massachusetts court held that ELM was a public figure because reports con-
cerning dangers to the public health constitute public controversies, and ELM
had become a public figure because it had been drawn into that controversy.21
T W O D I F F E R E N T I S S U E S A R E P O S E D in cases of this kind. First, the press acts

as an agent of the public in keeping it apprised of government actions. It has a
privilege under state law, and almost surely under the First Amendment, to
provide the public with a “fair and accurate report” of official actions and
proceedings. If the press accurately conveys the government’s position, the com-
munication is privileged even though the government’s arrest or complaint or
press release is unfounded.22 (An inaccurate report would subject the reporter
to liability in negligence unless some other basis for immunity were shown.)
Second, the press acts as an independent monitor of government action. It
goes beyond official acts and proceedings to comment critically on government
conduct. In such cases a privilege should attach premised on New York Times
Co. v. Sullivan. Those implicated in such press coverage become involuntary
public figures to the extent that identification of them is required to carry out
the journalistic mission of monitoring government behavior. Of the cases dis-
cussed in this chapter, only Scottsdale—involving a possibly critical commen-
tary on the government’s grant of immunity to a career criminal—comes under
this heading. All of the others should be considered instances of possibly inad-
equate attempts at “fair and accurate report”—although no suggestion of inac-
curacy appears in the ELM litigation concerning the challenged reports relating
to faulty Pap tests. None of the alleged malefactors in these cases should have
been classified as public figures. Recovery should have been permitted if the
press were shown to have been negligent.
A similar issue can arise even when no official action has been undertaken.
Ronald Rankin published a free tabloid occasionally distributed in supermar-
kets in northern Idaho. One article attacked the competence of the county
prosecutor, criticizing his failure to prosecute Irvin Wiemer for the murder of
his wife. Wiemer sued Rankin for defamation and recovered without showing
actual malice on Rankin’s part.23 The Idaho Supreme Court ruled that Wiemer
was not a public figure. Even if a controversy existed about the shooting and the
government’s failure to prosecute, Wiemer had not “thrust himself to the fore-
front to influence the resolution of the issues involved.”24 The opinion misses
the point. The case is like Wolston: if Wiemer can sue free of the requirement of
actual malice, the county prosecutor gains immunity from criticism of his offi-
cial conduct.25
T O S U M M A R I Z E , a person uttering an allegedly defamatory statement gains

complete protection against a defamation challenge if the statement is a “fair
and accurate report” of government acts or proceedings. But if a person goes
beyond the government’s own actions and proceedings, he faces liability in
defamation subject to possible application of the actual malice rule. A defen-
dant in a criminal proceeding or other target of law enforcement proceedings is
not necessarily a public figure. But public figure status is appropriate in two
circumstances.
1. If the target engages in conduct other than the conduct challenged as unlawful
and that conduct in itself would confer public figure status, the actual malice
rule applies. A target of government enforcement proceedings does not become
a public figure simply because he is named as a target or because he undertakes a
legal defense against the charges made. But efforts to influence public opinion
by other means, such as issuing press releases and holding news conferences, will
typically suffice to confer public figure status.
2. When the “sting” of the allegedly defamatory statement is, in part at least, the
government itself—as in Wolston and Scottsdale and Wiemer—the actual malice
rule should apply to remove impediments to effective criticism of government.
Neither the Supreme Court decisions nor those of the lower courts are
wholly in accord with these views. To the extent that they diverge, they depart
from the fundamental teachings of New York Times Co. v. Sullivan.
T W E L V E
SPECIAL CASES: UNLIMITED, IRRELEVANT,

AND INVOLUNTARY PUBLIC FIGURES
T H R E E C AT E G O R I E S O F P U B L I C F I G U R E S , mentioned briefly in prior discus-

sions, require further explication.
PUBLIC FIGURES FOR ALL PURPOSES

Butts suggested that general fame might support public figure status, a theme
reflected in the numerous cases involving athletes and entertainers.1 Gertz rea-
soned that, in addition to public figures related to particular public issues (iden-
tified in accordance with the Waldbaum methodology discussed in Chapter 8),
some “occupy positions of such power and influence that they are deemed
public figures for all purposes.”2 No Supreme Court decision has litigated the
question of whether a particular individual is a public figure for all purposes.
But one decision appears to have implemented the concept.
Hustler magazine carried a fictitious advertisement entitled “Jerry Falwell
talks about his first time.” It was modeled on a well-known Campari ad and
carried the legend “Ad parody—not to be taken seriously.” In the spoof Jerry
Falwell was depicted as having sex with his mother in an outhouse with his first
drink of Campari. The ad concluded with Falwell saying, “I always get sloshed
before I go out to the pulpit. You don’t think I could lay down all that bullshit
sober, do you?”3
Falwell sued Hustler on several theories and was rebuffed on the ground
that the ad parody was nonactionable opinion.4 The Supreme Court, writing in
1988, observed that neither party disputed that Jerry Falwell was a public fig-
ure. He “is the host of a nationally syndicated television show and was the
U N L I M I T E D , I R R E L E VA N T , A N D I N V O L U N TA R Y P U B L I C F I G U R E S 79
founder and president of a political organization known as the Moral Majority.

He is also the founder of Liberty University in Lynchburg, Virginia, and is the
author of several books and publications.”5 The Court described Falwell as “a
nationally known minister who has been active as a commentator on politics
and public affairs.”6 No specific issue had been addressed in the parody, so the
Waldbaum methodology could not have been employed.
Hustler is correct in its conclusion: Jerry Falwell may be subjected to criti-
cism in general terms because he takes positions on a host of issues. The same
may be said of William F. Buckley Jr. and others who purport to be gurus on the
totality of the universe.7 But the most common general public figures are the
media themselves: newspapers and broadcasters who sue others for defama-
tion. They are held to be public figures for all purposes because they propound
positions on a wide range of controversies. In these cases New York Times ap-
plies without any need to identify specific public issues.8
In most other cases a Waldbaum-type analysis is required, although authors
may be held to be public figures within the scope of their expertise. In Warner
v. Kansas City Star,9 Gary Warner, outdoor editor for the Star, had been dis-
charged for accepting gifts from persons whose products might be the subject
of newspaper reports. When the Star published the basis for the discharge,
Warner sued for defamation. A Missouri court ruled that Warner was a public
figure in his field: he had been outdoor editor of the Star for seven years,
writing prominent articles; he was well-known to people interested in outdoor
life; he had received awards and recognition for his writing and his promotion
of conservation causes.10 “Furthermore, influence over the attitudes and beliefs
of others in the field of plaintiff ’s credentials was of value to him as a profes-
sional outdoor writer. His authority, the weight of his views, increased with his
fame. It is inherent in his position that he invited public attention to himself
and to his views.”11
Similarly, in Maule v. NYM Corp.12 a sportswriter sued a publisher, alleging
defamation in an article denigrating his ability. The New York court held that
the writer was a public figure:
The product of plaintiff ’s craft—his books, articles and public appearances—were
[sic] obviously designed to project his name and personality before millions of readers
of nationally distributed magazines and millions of television viewers and to establish
his reputation as a leading authority on professional football. In short, plaintiff not
only welcomed but actively sought publicity for his views and professional writing
and by his own purposeful activities thrust himself into the public eye.13
In Maule as in Warner, the alleged defamation was related to the author’s claimed
expertise.14
Some courts have treated well-known authors as celebrities and classified

them as public figures without identifying any public issue—an approach par-
alleling the treatment of athletes and entertainers in cases like Brewer and James.15
But some courts have been more circumspect. In Hellman v. McCarthy,16 the
celebrated playwright Lillian Hellman sued the noted author Mary McCarthy.
In a television interview, McCarthy had charged that Hellman was dishonest
and that everything she wrote was a lie. The New York court ruled that it
was a jury question whether the statement should be viewed as nonactionable
opinion. The court reserved decision on whether Hellman was a public figure
because she had yet to be related to any public controversy as required by
Gertz.17
Some persons or organizations may be “public figures for all purposes,”
obviating the need to resort to the Waldbaum methodology. But their number is
exceedingly small. Courts have been reluctant to invoke the concept of the all-
purpose public figure in recent years. Their reluctance is consistent with the
general objective of facilitating discussion of public issues (by requiring a plain-
tiff to identify such an issue) while affording protection against defamation in
matters unrelated to any public issue but involving an admittedly prominent
person.
IRRELEVANT PUBLIC FIGURES

At the opposite pole are cases in which a person who is or was a public figure or
a public official is permitted to sue under Gertz without proof of actual malice
because the person’s public status is irrelevant to the defamation in issue.
Richard J. Ryder and Richard R. Ryder were Virginia attorneys with the
same name except for their middle initials. In writing about the Watergate
scandals, Time magazine described the misdeeds of Richard R. Ryder (RRR) in
concealing stolen money and a sawed-off shotgun in his safe deposit box. But it
erroneously identified Richard J. Ryder (RJR) as the culprit. RJR sued in defa-
mation. Time defended on the ground that RJR was a public figure because he
had held public office and was active in politics.18 Time’s argument was rejected
by the court of appeals. RJR’s activities “had nothing to do with the reference . . .
in the essay”; “there was no public debate as to any conduct of [RJR] nor was
there any criticism of him as a public official or as a private citizen. . . . [RJR]
had no connection with the scandals.”19
Similarly, in Bufalino v. Associated Press,20 Charles Bufalino was an attorney
and part-time solicitor for the borough of West Pittston. The Associated Press
published a story identifying Bufalino as a person with ties to organized crime.
The court of appeals declined to decide whether Bufalino’s public position made
him a public official under Rosenblatt because he had not been identified by
position in the article, which simply referred to him as an attorney: “[T]he
public official doctrine is not available where a defendant’s statements do not
directly or impliedly identify the plaintiff as a public official, and there is no
showing that the plaintiff ’s name is otherwise immediately recognized in the
community as that of a public official.”21 In such cases the statements in issue
cannot foster debate on public issues or public officials.22
In Healey v. New England Newspapers,23 Paul Healey, a doctor, was president
of a YMCA board of directors. The YMCA was involved in a public dispute
about the dismissal of two employees. Healey excluded Gerald Lampinski—a
supporter of the employees—from a meeting of the YMCA board, and Lampinski
joined other protesters 400 yards away. He collapsed and later died of a heart
attack. Defendant newspaper implied that Healey had refused to help the stricken
Lampinski.24 On Healey’s suit for defamation, the Rhode Island Supreme Court
conceded that Healey was a prominent figure in a public dispute involving
actions of the YMCA board. But the defamation was not related to that contro-
versy: “The defamatory statements involved plaintiff ’s role as a physician and
his implied inaction in response to the collapse of a person in need. The article’s
reference to plaintiff ’s profession is a reference to his private life, not his public
role.”25
A similar principle governs comments about a person previously a public
official or a public figure but no longer holding a public office or involved in a
public issue. That person remains a public official or a public figure as regards
his behavior while he had public status.26 The mere passage of time does not
impair the constitutional privilege of the press to examine earlier events. But
with respect to subsequent behavior, after the person has ceased to be a public
official or a public figure (behavior in no way connected to the person’s prior
status), the individual is a private person, and defamations are actionable in
accordance with the principles of Gertz. For example, in Durham v. Cannan
Communications,27 James Durham had been counsel for a court of inquiry con-
cerned with mismanagement of public funds. Four months after Durham’s pub-
lic duties had concluded, Cannon Communications broadcast that Durham
was involved with a house of prostitution. A Texas court ruled that Durham was
not a public official because his official duties had terminated and the defama-
tory broadcast had nothing to do with those duties.28
As these cases illustrate, the public status of a defamation plaintiff is not
enough to automatically invoke New York Times. The story at issue must be
germane to that status. Here as elsewhere, close attention to the story is vital.
For example, a closer examination of the story at issue in Waldbaum, noted in
Chapter 7, would have revealed that the story was not germane to Eric Waldbaum’s
status as a public figure.29
INVOLUNTARY PUBLIC FIGURES

Following the decision in Gertz and its conclusion that “instances of truly invol-
untary public figures must be exceedingly rare,”30 lower courts have been reluc-
tant to invoke the concept of an involuntary public figure.31 But exceptions have
occurred.
Merle Dameron was the sole air traffic controller on duty at Dulles Airport
in 1974 when a TWA aircraft crashed into Mt. Weather. He was exonerated of
any wrongdoing in connection with the crash. In 1982 an Air Florida flight
plunged into the Potomac River on its approach to Washington National Air-
port. In a report on the latter accident, Washingtonian magazine said air traffic
controllers were “assigned partial blame” for the Mt. Weather crash. Dameron
sued for defamation.32
The Court of Appeals for the District of Columbia held that Dameron was
a public figure for purposes of discussing the Mt. Weather crash and that he
could not recover in defamation absent proof of actual malice: “Persons can
become involved in public controversies and affairs without their consent or
will. Air-controller Dameron, who had the misfortune to have a tragedy occur
on his watch, is such a person. . . . Dameron [became] an involuntary public
figure for the limited purpose of discussions of the Mt. Weather crash.”33 The
court emphasized that Dameron had become well-known to the public in con-
nection with the Mt. Weather crash and that such public identification and
association continued to the date of the publication here in issue.34
Y E L L O W S T O N E L A K E H A D B E C O M E P O L L U T E D and had to be drained at tax-

payer expense. Joseph Wiegel, with 3,000 acres, was the largest farmer in the
vicinity. The Capital Times published a series of articles about pollution of the
lake and criticized Wiegel’s failure to practice proper soil erosion control tech-
niques.35 On Wiegel’s action for defamation, a Wisconsin court held that he
was a public figure for purposes of discussing pollution of the lake. Even if
Wiegel had not “consciously or voluntarily thrust himself into the dispute,” he
had “by far the largest farm in the area, and he was the subject of public threats
of [government] legal action to force him to cease cultivating his lands in a
manner causing pollution of the lake.”36 Wiegel was described as the “central
figure in the controversy,” and the court followed Dameron in holding that he
was a public figure.37
T W O R E C E N T C A S E S R E F U S E D T O I N V O K E the concept of an involuntary pub-

lic figure. One concerned the assassination of Senator Robert Kennedy in 1968,
the other the Watergate burglary in 1972.
Khalid Khawar, a freelance Pakistani journalist, was present in June 1968
when Senator Robert Kennedy was shot by Sirhan Sirhan. Prior to the assassi-
nation, Khalid had his picture taken standing on the podium near the senator,
and following the assassination he was interviewed by law enforcement officials
but never regarded as a suspect. Twenty years later Robert Morrow published a
book asserting that Kennedy had been assassinated by a young Pakistani, not by
Sirhan Sirhan; thereafter Globe International, in its tabloid, carried the matter
one step further by identifying Khawar as the assassin. On Khawar’s suit against
Globe for defamation, Globe contended that Khawar was an involuntary public
figure, drawn into a public controversy without purposeful action on his part.
The California Supreme Court rejected the argument, affirming an award to
Khawar of $1.175 million in damages.38
The court concluded that to be classified as a public figure without pur-
poseful involvement in a public controversy, a person must have “acquired such
prominence in relation to the controversy as to permit media access sufficient
to effectively counter media-published defamatory statements.” In this case
Khawar had remained in obscurity even after publication of the Morrow book;
no reporter had sought to interview him; he had not even been aware of the
book. Khawar was not thrust into the public limelight until publication of the
Globe story. The court ruled that the media cannot “confer public figure status
simply by publishing sensational defamatory accusations against [a] private in-
dividual.”39
On June 17, 1972, burglars broke into the headquarters of the Demo-
cratic National Committee (DNC) at the Watergate Hotel in Washington,
D.C. The purpose of the burglary, according to the conventional wisdom, was
to repair a wiretap on the phone of Lawrence O’Brien, then chairman of the
DNC. G. Gordon Liddy, the confessed organizer of the burglars, offered a
different explanation. He contended that the purpose of the break-in had been
to obtain information about a call-girl ring connected to the DNC. Liddy
alleged that the desk and telephone of Ida Wells, a DNC secretary, had been
used in making assignations between visitors to the DNC and the prostitutes
who had been members of the ring. He implied that Wells had played a roll in
the call-girl operation; her desk was said to have contained a folder of photo-
graphs of the prostitutes, affording interested visitors a choice. Wells sued
Liddy for defamation.40
A U.S. court of appeals refused to classify Ida Wells as an involuntary

public figure. To invoke the concept two requirements must be met. (1) The
plaintiff must be “a central figure in a significant public controversy,” and the
allegedly defamatory statement must occur in a discussion of that controversy.
(2) The alleged involuntary public figure must have “assumed the risk of public-
ity” by taking some action, or by failing to act when action was required, in
circumstances in which a reasonable person would understand that publicity
would likely ensue. In this case the first requirement was not satisfied: “Wells
simply has not been a central figure in media reports on Watergate. . . . Since
the emergence of the call-girl ring theory, in those instances where the media
has mentioned Wells, she has been a very minor figure in the discussion.”41
T H E R U L I N G S I N K H AWA R A N D W E L L S A R E S O U N D . Prior to the publications

at issue, no public controversy had linked Khawar to the Kennedy assassination
or suggested that Wells had been anything other than a bystander in the Watergate
affair. Some of the reasoning of Khawar and Wells seems wide of the mark;
neither access to the media nor voluntary action or inaction should be viewed
as critical in assessing whether a person is an involuntary public figure. The
proper test is more straightforward: to be considered an involuntary public
figure, a person must occupy a key role in an ongoing public controversy—one
that cannot be explored in an intelligible way without drawing that person into
the public discussion. Neither Khawar nor Wells occupied such a role.
Dameron was also correctly decided. Air traffic control is a governmental
function executed by government employees. Dameron was such an employee.
The court of appeals might have reached the same conclusion more forth-
rightly by following the analysis of public officials suggested in Chapter 6:
although Dameron was a subordinate employee, he was nonetheless a public
official for purposes of this case because the criticism concerned the perfor-
mance of his official duties. But the court of appeals was apparently deterred
from this course by the contrary implications of Rosenblatt: Dameron might
have been analogized to the hypothesized night watchman accused of stealing
state secrets—said by Rosenblatt to be excluded from the ranks of public offi-
cials (see Chapter 6).
Even so, criticism of air traffic control in connection with the crash at Mt.
Weather was a criticism of government operations. Dameron was a central
figure in that episode. Dameron had to be conscripted, as an involuntary par-
ticipant in discussions of that incident, to permit criticism of government to be
intelligently stated. (Indeed, Dameron had not been named in the challenged
Washingtonian article; the article had simply referred to air controller error.
Dameron had claimed that the article was “of and concerning” him because he
had been known to the public as the air controller on duty at the time.)
Wiegel also seems sound. The article concerned government responses to
pollution of Yellowstone Lake: efforts to control the pollution by soil erosion
prevention, and expenditure of taxpayer funds to drain the lake. Wiegel, as a
“central figure in the controversy,” may have been indispensable to an intelli-
gent discussion of the public issues presented. Still, nothing in the opinion
suggests that the government was a target of criticism; the justification for a
New York Times privilege in this instance must rest on a concern for public
involvement in self-government.
Many courts studiously avoid characterizing a person as an involuntary
public figure by premising that person’s public figure status on a voluntary
course of conduct undertaken by the person: a lawyer socializing with unsavory
clients,42 a business executive accepting a high-profile position,43 a criminal
embarking on a career of crime,44 an athlete or entertainer performing in pub-
lic.45 On occasion, public figure status has been conferred on an individual who
happens to be related to a famous person by blood or marriage or other associa-
tion.46 The reasoning of these cases is circular and spurious and should be
repudiated. Public figure status should rest not on a judicially fabricated con-
cept of supposedly voluntary action but on a journalistic or citizen need to
comment on the person in question in order to criticize government or to
engage in a meaningful discussion pertinent to self-government or some simi-
larly significant public issue.
This focus signals an expansion of the concept of the involuntary public
figure in some areas even as it suggests a contraction in others. In Hutchinson47
and Wolston,48 for example, where the crux of the statements in issue was criti-
cism of government—imprudent expenditures in the first case and laxity in law
enforcement in the second—a finding that the complainants were involuntary
public figures was appropriate to protect unimpeded criticism of government.
Celebrity status or an otherwise noncontroversial relationship with a public
figure should not suffice.
T H I R T E E N
STRICTLY BUSINESS
THE SUPREME COURT has yet to decide a case concerned with the classifica-
tion of a business firm (or a business executive) as a public or private figure.
Lower court cases are in disarray, although some useful themes have emerged.
It may prove helpful to consider some of the factors most frequently cited in the
lower court opinions.
STATUS, SIZE, AND PROMINENCE

On October 31, 1975, the Evening Star carried a front-page story under the
headline “A Contractor’s Stag Party for Boys at the Pentagon.” It described a
party given by Martin Marietta, a major defense contractor, at a Maryland
hunting lodge. One third of the forty to fifty guests were Defense Department
personnel. The article further stated that two prostitutes attended the party, one
of whom “swung naked from the antlers of an animal head mounted on one of
the lodge’s walls.”
Martin Marietta sued the Evening Star for defamation; the U.S. District Court
entered summary judgment for the newspaper.1 Several grounds were advanced.
One basis of decision was that Gertz cannot apply to corporations because corpo-
rations have no private lives or private reputations to protect. As to them,
Rosenbloom should continue to apply, and actual malice should be required if
the issue is one of public concern.2 This theme was reiterated by Judge Richard
Posner in a case involving a major tobacco company: “[I]f the purpose of the
public figure–private person dichotomy is to protect the privacy of individuals
who do not seek publicity or engage in activities that place them in the public
eye, there seems no reason to classify a large corporation as a private person.”3
STRICTLY BUSINESS 87
Notwithstanding these views, subsequent decisions have refused to classify

corporations as public figures simply by reason of their corporate status.4 It has
long been recognized that corporations cannot recover for emotional distress,5
but the economic interests represented by corporations—large as well as small—
are but proxies for the underlying economic interests of officers, shareholders,
and employees. Corporations can recover for defamatory utterances injurious
to their economic position; they are not disqualified by Gertz or by any subse-
quent authoritative ruling.
Even if corporate status does not result in public figure classification, per-
haps corporate size is decisive. Judge Posner was discussing Brown & Williamson,
a large corporation. There is some support for the view, but the issue has rarely
been litigated.6
In Reliance Insurance Co. v. Barron’s,7 Barron’s published an unfavorable
article about a proposed issue of Reliance Insurance securities, adversely affect-
ing the price of the securities; the company sued for defamation. In holding
Reliance to be a public figure, the district court observed inter alia:
It is a large corporation with more than a billion dollars in assets. Nearly all of its
common stock is owned [by] a publicly held company whose shares are traded on
the New York Stock Exchange. There has been great public interest in [Reliance]
Insurance and its affiliated companies over the last several years. . . . In addition,
Insurance was, at the time of the libel, offering to sell its stock to the public,
thereby voluntarily thrusting itself into the public arena, at least as to all issues
affecting that proposed stock sale.8
A similar analysis appears in Beech Aircraft v. National Aviation Underwrit-

9
ers. Beech sued for defamation when an article in Aviation Consumer described
one of its aircraft as unsafe in icing conditions. The district court found that
Beech was a public figure, relying in part on its size and its prominence in its
industry. The company was a large aircraft manufacturer with an international
reputation. It had sales and assets running into the hundreds of millions of
dollars, it employed over 5,000 people in Wichita alone, it was the subject
of business and financial commentary in the press, and it was a subsidiary
of Raytheon—one of the hundred largest corporations in the country. “All
of this alone does not necessarily make Beech an all purpose public figure:
it is not IBM or General Motors, and outside of Wichita there are probably a
lot of people who have never heard of Beech.”10 But the audience of Aviation
Consumer consisted of people interested in general aviation airplanes; “while
Beech may not exactly be a household word nationwide, it could hardly be
better known among the class of people interested in buying general aviation
airplanes.”11
Although size and prominence may be factors in determining whether a

corporation is a public figure, they should not be controlling.12 In both Reliance
Insurance and Beech Aircraft, the defamations concerned identifiable issues on
which the companies were perceived as taking a public stand: the financial
soundness of an issue of securities in Reliance Insurance and the safety features
of a general aviation aircraft in Beech Aircraft.13 (In Martin Marietta the court
had found an antecedent public controversy about the entertainment of pro-
curement personnel by defense contractors.)
ADVERTISING AND PROMOTION

Reliance Insurance attached some importance to the fact that the company “was
offering to sell its stock to the public, thereby voluntarily thrusting itself into the
public arena.” This theme was reiterated in Steaks Unlimited, Inc. v. Deaner.14
The company there was selling frozen beef to the public. Defendant broad-
caster, responding to consumer complaints, aired a program charging that the
company was misrepresenting the price and quality of its meat. In holding that
the company was a public figure, the court of appeals emphasized an “advertis-
ing blitz” by the company that had preceded the broadcast; it also observed that
the company had regular and continuing access to the media to respond to the
unfavorable program.15
But few courts have been prepared to say that simply offering a product for
sale or advertising and promoting that product initiates a public controversy
that can serve as a premise for public figure status under Gertz.16 Typical is
Bruno & Stillman v. Globe Newspaper Co.17 The newspaper ran stories critical of
the quality and safety of boats manufactured by Bruno & Stillman, the largest
regional manufacturer and seller of fishing boats. The court of appeals refused
to classify the company as a public figure. Bruno & Stillman was indistinguish-
able from any number of other entrepreneurs; there was no showing of any
preexisting controversy about the boats or of repercussions going beyond the
owners of particular boats. On remand, the district court could consider “whether
a public controversy implicating the company existed apart from the challenged
statements (or, perhaps, whether the likelihood of harm was such that public
controversy was highly probable); and whether the prominence, power, or in-
volvement of the company—or its public efforts to influence the results of such
controversy—were such as to merit public figure treatment.”18
Every business, in selling its products to the public, makes representations,
express or implied. In almost every case, quite independent of advertising and
promotion, an implied warranty of merchantability accompanies the sale of
goods; similar implied warranties of workmanlike quality or professional com-
petence accompany the provision of services. If holding out to serve the public
is sufficient to trigger public figure status, then virtually all business enterprises
would qualify as public figures. That is not the law.
On a related point, one court of appeals has rejected the applicability of
constitutional privilege in the context of comparative advertising. In U.S.
Healthcare v. Blue Cross of Greater Philadelphia,19 two rivals in a contest to
provide health care insurance were seeking to attract patrons. Each touted the
advantages of its own plan and disparaged the other’s offering. U.S. Healthcare
sued for defamation, and Blue Cross raised the defense of constitutional privi-
lege: the two companies were admittedly prominent proponents of alternative
modes of meeting the public’s health care needs. The court disallowed the de-
fense on the ground that Blue Cross’s advertising was “commercial speech.”20
The decision is unsound. When a statement addresses a public issue, it contrib-
utes to the public dialogue whether it is commercial speech or noncommercial
speech. The court’s opinion may be expected to deflect advertisers from criti-
cizing the positions of rivals, even in a public debate between persons otherwise
characterized as limited-issue public figures—an outcome clearly at variance
with the objective of constitutional privilege. A different issue is posed if the
effort is to suppress routine false and misleading advertising detrimental to
consumers. The commercial speech doctrine enables the government to act
against such advertising—an entirely different matter.21 Among other things,
consumer protection remedies are typically prospective in character, not fraught
with the peril of ruinous retrospective damages.
INVOLVEMENT IN A PUBLIC CONTROVERSY

William Tavoulareas was president of Mobil Corporation, the nation’s second-
largest oil company and third-largest industrial corporation. In that capacity he
became a leading spokesperson on controversial public issues concerning the
oil industry during the 1970s. Peter Tavoulareas was William’s son, who in 1974
was working in his first job in the shipping business at an annual salary of
$14,000. In the period 1974–1979 Peter rose to become manager of Atlas
Maritime Company, a shipping firm, and acquired a 75 percent equity interest
in the firm. In that time span Atlas received $4.5 million in management fees
from Mobil for the shipment of crude oil from Saudi Arabia to the United
States. In 1979 the Washington Post published a story about Peter’s rise to afflu-
ence, stating that William Tavoulareas had used his influence as president of
Mobil to “set up” Peter as a partner in Atlas—whose business included a multi-
million-dollar management services contract with Mobil awarded to Atlas on an
exclusive basis without solicitation of bids. William Tavoulareas sued for libel.22
The Court of Appeals for the District of Columbia affirmed a judgment

against the defamation suit on two grounds. First, the story was “substantially
true.”23 Second, William Tavoulareas was a limited-purpose public figure and
had failed to prove actual malice on the part of the Washington Post. On the
second branch of its opinion, the court followed Waldbaum. It found the Post
story germane to two public controversies: a broad one encompassing the issue
of public regulation and reform of the U.S. oil industry and a narrow one
concerning the nepotistic relation between Mobil and Atlas.24 William Tavoulareas
was held to be a prominent spokesperson on both issues, thrusting himself to
the forefront in public commentaries. On the narrow issue, the court observed
pre-1979 publicity and discussion had occurred and that it had been expected
that the dispute would affect persons beyond the particular parties involved.25
The Post was the first general-circulation newspaper to discuss the arrangement
involving Tavoulareas and his son. But nothing “requires that the first newspa-
per to report on a pre-existing public dispute be held more strictly liable than
less resourceful periodicals that hold back and follow its lead.”26
More troublesome is White v. Mobile Press Register.27 White, a former offi-
cial in the Environmental Protection Agency (EPA), was an officer of three
companies that transported hazardous waste. The Register reported that one of
those companies had lost a shipment of cyanide sludge, identifying White as a
responsible party. On White’s defamation action, the court held that he was a
public figure: “White’s prior association with the E.P.A., and his choice of
career as a high level executive in an industry that is the subject of much public
interest and concern show a voluntary decision to place himself in a situation
where there was a likelihood of public controversy. His action invited attention
and comment.”
By contrast, in Bair v. Clark28 Bair’s employment with a nonprofit agency
was terminated; and Clark, the agency’s director, gave reporters a negative
appraisal of Bair’s job performance. On Bair’s suit for defamation, a Florida
court ruled that Bair was not a public figure, although “he held an important
administrative position with a publicly supported foundation whose purpose
was to respond to two of the most critical social problems of our time, drug
abuse and alcoholism.” Absent voluntary entry into the public forum, “general
participation in a controversial activity or occupation will not transform a pre-
viously obscure private individual into a public figure.”
White is extreme in classifying an entire industry—hazardous waste dis-
posal—as controversial. As suggested by Bair, countless other industries and
endeavors have significant impacts on public health, safety, and welfare. Even
so, some entrepreneurs, concerned with more particularized products or projects,
are more readily classified as public figures under the methodology of Gertz and
Waldbaum. Examples include the promoter of a huge hog-processing facility
that had generated an ongoing controversy;29 a seller of bulk meat who had
attracted extensive critical comment in consumer, government, and media re-
ports;30 a podiatrist advocating a new and controversial surgical procedure;31 a
joint venture pursuing a controversial proposal to reprocess sewage sludge to
revegetate strip-mined lands;32 a private investigator specializing in the contro-
versial practice of “deprogramming” religious cult members;33 and a research
scientist using animals in a manner opposed by animal-rights activists.34 Courts
have also been receptive to the classification of charitable organizations as pub-
lic figures premised on the appeals they make for public support.35
When, as in Tavoulareas, a business or its officers expressly advocate one
side of a controversial public issue, they are public figures under the reasoning
of Walker, Gertz, and Waldbaum.36 The same may be said of businesses seeking
to go forward with projects that have attracted public opposition, criticism, or
attention. They, too, become advocates in the public forum. But a question
remains as to whether it is appropriate in cases like White to premise public
figure status on participation in an industry with a purpose and practice not in
itself controversial.37 White rests on tenuous grounds and should be repudiated.
PUBLIC REGULATION
In Reliance Insurance, previously discussed, the court observed that the company’s
business “is in a field subject to close state regulation, and the company files
periodic reports with the SEC [Securities and Exchange Commission] and the
New York and Pennsylvania Departments of Insurance.”38 Similar statements
have appeared in other cases classifying regulated companies as public figures:
insurance companies,39 jai alai proprietors,40 medical training schools,41 and
credit unions.42 But other courts have refused to base public figure status on the
existence of government regulation.
In Blue Ridge Bank v. Veribanc Inc.,43 Veribanc had issued a report falsely
suggesting that Blue Ridge Bank was insolvent. On the bank’s suit for defama-
tion, the court of appeals conceded that there was a strong public interest in the
solvency of banks and that Blue Ridge Bank enjoyed a relatively high profile in
the local community.44 But the Veribanc story was unrelated to any antecedent
controversy surrounding the bank. The court refused to accept the proposition,
tacitly adopted in some jurisdictions, that a business enterprise is a public
figure “simply as a result of being subject to pervasive governmental regula-
tion.”45 The public interest in regulation does not elevate every member of the
regulated class to public figure status. In this case the vulnerability of banks to
runs on deposits both supports regulation and “suggests the imprudence of

automatically elevating the standard of proof ” in defamation cases brought by
banks.46
Perhaps the best articulation of the relation between regulation and public
figure status appears in the Beech Aircraft case, previously discussed,47 in which
Aviation Consumer criticized Beech for marketing an unsafe aircraft, dangerous
in icing conditions. The safety of aircraft was subject to supervision by the
Federal Aviation Administration, and the district court observed:
[I]t is inherently impossible to tease out the actions of the regulators and those
they regulate when it comes to criticism. How can one possibly criticize the
government and its officials (who are plainly within the “actual malice” test under
New York Times and Gertz), and say that they are not promoting public safety
sufficiently, since they certified a dangerous airplane, without implicitly criticizing
Beech? By the same token, how can you criticize Beech for [marketing] a danger-
ous airplane and for impeding a government investigation by stalling and
stonewalling without implicitly criticizing the government, which allowed Beech
to get away with such behavior despite the public’s demand for safe airplanes?48
The analysis here is the same as that in other cases involving persons hav-
ing dealings with the government—whether as beneficiaries of public expendi-
tures or as targets of government enforcement efforts. If the defamation of the
private party is incidental to, or inherently intertwined with, criticism of the
government, that defamation must be protected under New York Times. Other-
wise, criticism of government can be stymied simply by allowing the private
party to bring the defamation action. But not every criticism of a regulated
company is integral to a criticism of government. In Blue Ridge Bank, for ex-
ample, the publisher of the defamation had simply misread a Federal Reserve
Board report; the story conveyed no criticism of the board.49
ALLEGED VIOLATIONS OF LAW

Turf Lawnmower Repair was a small New Jersey business engaged in repairing
lawn mowers. The Bergen Record, a local newspaper, ran a series of stories
alleging that Turf had “ripped-off ” customers: charging customers for new parts
when old parts had been used, charging for work that had never been done, and
recommending or performing unnecessary work. On Turf ’s suit for defama-
tion, the New Jersey Supreme Court declined to rule on whether the newspaper’s
articles were false, having been based on faulty evaluations and biased report-
ing. Turf, driven to insolvency, was denied a remedy because it had failed to
prove actual malice.50 Although disclaiming an intent to encompass all business
enterprises under the mantle of public figures, the New Jersey Supreme Court
concluded that the actual malice standard was appropriate in this case. The
charges in the newspaper’s articles constituted violations of New Jersey’s con-
sumer fraud legislation, and it was in the public interest that such violations be
exposed.51
A few courts have followed the approach of Turf Lawnmower and have
found public figure status, or otherwise required proof of actual malice, when
the defamed individual or enterprise had been charged with a violation of law.
But most courts have not been prepared to go so far because so broad a privi-
lege would have a devastating effect on businesses’ ability to obtain redress in
defamation.52 Operating subject to an ever-expanding regulatory regime, busi-
ness enterprises are subject to a wide range of charges of unlawful practices—
some of which will prove to be wrong.
The appropriate analysis here is the same as that suggested in Chapter 6 in
connection with Rosenblatt and the Supreme Court’s example of a night watch-
man stealing state secrets. If the purpose of the journalist or private citizen is to
criticize the government, either for laxity in permitting the harm to occur or for
indifference in failing to pursue wrongdoers, then New York Times must apply to
exclude restrictions on seditious libel. In such cases the government need not
sue on its own behalf to stifle criticism; the targeted private individual (the
night watchman or other wrongdoer) can bring suit to penalize the criticism at
issue. But stories that focus on the wrongdoer and do not include the govern-
ment as a significant target should be subject to challenge by the alleged wrong-
doer. In such cases an action by the target of the defamation does not preclude
criticism of government. Some judgment is required about the principal “sting”
of the story—government wrongdoing or private misconduct or possibly both—
but some such judgment is essential if New York Times is to accomplish its
mission of repudiating sanctions against seditious libel while at the same time
preserving some scope for defamation actions in the private sector. Turf
Lawnmower did not involve a criticism of government; the company should
have been held to be a private person.
IMPORTANCE OF THE ENTERPRISE TO THE PUBLIC

In a case antedating Turf Lawnmower Repair, the New Jersey Supreme Court
required proof of actual malice when a business contended that it had been
defamed by a newspaper’s false report that it was selling tap water in bottles
labeled as containing spring water.53 The court based its decision on the nature
of the product rather than the nature of the enterprise: “As an essential of
human life, drinking water is a paradigm of legitimate public concern.”54 In a
companion case, New Jersey required actual malice when a newspaper falsely
accused a former bank officer of improperly obtaining an uncollateralized loan

from the bank with which he had been associated.55 The court cited the general
public concern with banks, their extensive regulation, and specific regulations
governing “incestuous loans” between banks and their officials.56
Other courts have reached similar conclusions in conferring public figure
status upon a bond marketing fund,57 other important financial institutions,58 a
transportation company serving thousands,59 a firm providing solar power,60
and a laboratory performing medical tests.61 Contrary conclusions have been
reached by other courts in cases posing similar and sometimes identical issues.62
To classify a business as a public figure because of the nature of its busi-
ness, where the existence of the business and the industry is not in itself a
matter of public controversy, is to engage in a form of analysis once employed
in constitutional law rulings to justify the economic regulation of private enter-
prise. Under this regime a business could be regulated if it was “affected with a
public interest”; otherwise, regulation was inappropriate and unconstitutional.63
This approach was repudiated by the Supreme Court in 1934 on the ground
that the concept of a special class of businesses affected with a public interest
was unsound; any business could be affected with a public interest if regulation
were needed to respond to a recognized public concern.64 Thus the business in
Turf Lawnmower Repair, insignificant in its relation to most public concerns,
engendered the requisite public interest when the issue was prevention of con-
sumer fraud.
Here, as in the closely related problem of alleged unlawful behavior by
businesses, the analysis sweeps too broadly. Any business could be brought
within the domain of businesses affected with a public interest if the purported
defamation alleges conduct at variance with generally accepted standards de-
signed to prevent fraud or financial instability or to guard against hazards to
public health, safety, or welfare. A more discriminating approach is required.
ON THE HORNS OF A DILEMMA

Criticism of business enterprise poses problems at two levels. The first, and the
one most clearly implicated by New York Times, is criticism that challenges the
government as well as the enterprise. To penalize that criticism is to validate the
law of seditious libel as long as suit is brought by a surrogate for the government
(the business benefited by government favoritism, corruption, or inefficiency).
The principle is clear enough. But application may prove exceedingly difficult
in a substantial class of cases. Under this reasoning, a journalist can escape the
normal standard of liability in defamation by making clear that the government,
as well as the business, is targeted as culpable. Even in cases in which the
charge, although defamatory, does not allege a violation of existing law and
concomitant government corruption or laxity, a journalist could cast the story
as one depicting inadequacies of the prevailing legal regime in failing to come
to terms with the problem exposed. In short, the message may be “There ought
to be a law.” The First Amendment interest in facilitating self-government is
thereby implicated.65
But there is a deeper problem. Thus far the discussion has proceeded on
the assumption that the main First Amendment objection to defamation is the
impediment defamation poses to effective criticism of government and to re-
medial political change. That is indeed the most important concern. But defa-
mation also poses a threat to another First Amendment interest: the search for
truth.
As noted in Chapter 4, the law of defamation does not impinge on the
search for truth along a broad front. But when the soundness of scientific meth-
ods or the credentials of purported experts are at issue, a conflict is unavoid-
able. So, too, in the case of investigative reporting on consumer affairs or
financial matters. It may be entirely lawful, and not inconsistent with public
policy, to issue securities that are extremely risky or products that are extremely
fragile. But investors and consumers are in no position to reach intelligent
conclusions unless they know how risky or how fragile.66 Here the role of the
press or of an informed private observer may prove critical. They can offer a
disinterested assessment of the risks and possible pitfalls associated with an
investment or a product. Truthful information is vital to rational decision mak-
ing, so investigative reporting should be encouraged. At the same time, false
information on the same topics may prove devastating to the fortunes and
livelihoods of the entrepreneurs victimized by defamatory falsehoods.
No easy answer is apparent. Most courts, departing from the New Jersey
model in Turf Lawnmower Repair and related cases, invoke a standard of negli-
gence to govern false statements about private business enterprises.67 The ratio-
nale was stated in Brown v. Kelly Broadcasting Co.,68 holding a television station
accountable in negligence for a broadcast asserting that Brown had done defi-
cient remodeling work:
The need to redress defamation is as important now as when . . . defamation was
first recognized, perhaps more so. In an organized and centralized society, where
economic relationships are likely to be based on an impersonal and reputational
level as opposed to the more decentralized and personal approach characteristic of
a bygone era, how we are perceived takes on greater significance. For better or
worse, in today’s world, most of us are known by our images. . . . A tradesman in
the 18th century defamed by a customer could rely on his good reputation with
others and perhaps had a reasonable opportunity to present the truth to those
who mattered to his livelihood. In today’s business market, there is little opportu-
nity for self-help when a tradesperson, e.g., a contractor like plaintiff in this case, is
disparaged to thousands of potential customers by a television program.69
The negligence standard, although imperfect, is probably the best that can
be achieved in implementing constitutional privilege in cases not involving ex-
press or implied criticisms of government or the need for remedial public ac-
tion. The journalist, subject to some risk in the event of error, can be expected
to take additional care. Such additional care will reduce falsehoods having a
particularly damaging potential. But the impact may be more extensive, dis-
couraging reports that may well be true and helpful to the public but too risky
for the journalist to voice in the face of uncertainty. A more comprehensive
reassessment may be required—one to be addressed in subsequent chapters
(see particularly Chapters 23–25).
P U R E L Y P R I VAT E L I B E L S 97
F O U R T E E N
PURELY PRIVATE LIBELS
F R O M T H E V E R Y B E G I N N I N G , the Supreme Court has recognized “that differ-

ent interests may be involved where purely private libels, totally unrelated to
public affairs, are concerned.” In its 1964 opinion in Garrison, applying the
actual malice rule, the Court was explicit in disavowing “any views as to the
impact of the constitutional guarantees in the discrete area of purely private
libels.”1 The issue remained dormant for twenty years.
In 1976 Dun & Bradstreet circulated to five subscribers a confidential
report that Greenmoss Builders had declared bankruptcy. The report was false,
premised on an error by a seventeen-year-old high school student paid to review
Vermont bankruptcy filings; the student had inadvertently attributed to
Greenmoss a bankruptcy petition filed by a former employee of the company.
Dun & Bradstreet had not tried to verify the report with Greenmoss before
releasing it to the five subscribers. When Greenmoss learned of the report and
informed Dun & Bradstreet of its falsity, the latter transmitted corrections to
the subscribers. Greenmoss was dissatisfied with the corrective notice, but
Dun & Bradstreet refused to divulge the subscribers’ identities to Greenmoss.
Greenmoss then sued for defamation. The Supreme Court of Vermont sus-
tained a verdict for Greenmoss of $50,000 in compensatory damages and
$300,000 in punitive damages. It rejected a claim by Dun & Bradstreet that
Gertz precluded an award to Greenmoss of presumed and punitive damages
absent proof of actual malice.2
In a 1985 opinion the U.S. Supreme Court affirmed. The limitations of
Gertz on presumed and punitive damages were held to be inapplicable because
the Dun & Bradstreet report did not pertain to an issue of public concern. The
Court observed that “the role of the Constitution in regulating state libel law is
far more limited when the concerns that activated New York Times and Gertz are
absent. In such a case ‘[there] is no threat to the free and robust debate of public
issues; there is no potential interference with a meaningful dialogue of ideas
concerning self-government; and there is no threat of liability causing a reaction
of self-censorship by the press.’ ”3
In concluding that the Dun & Bradstreet report concerned no public issue,
the Court looked to its “form, content and context”4 and characterized it as
speech solely in the individual interest of the speaker and its specific business
audience.5 The credit report at issue was made available to only five subscrib-
ers, who were bound by contract not to further disseminate the report. Credit
reporting was motivated solely by the desire for profit and was more objectively
verifiable than speech deserving of higher protection. Further, “[T]he market
provides a powerful incentive to a credit reporting agency to be accurate, since
false credit reporting is of no use to creditors. Thus, any incremental ‘chilling’
effect of libel suits would be of decreased significance.”6 But the Court’s ap-
proach was not limited to the commercial context. Its views would apply if “a
woman . . . was branded a ‘whore’ by a jealous neighbor.”7
Dun & Bradstreet raises two classes of questions, one concerning the scope
of the opinion’s application and the other concerning the consequences that
flow from finding that the issue is not one of public concern. Taking the issues
in reverse order, Dun & Bradstreet itself holds that if no public issue is impli-
cated, the limitations of Gertz on presumed and punitive damages do not apply.
It also seems evident that if the issue is solely one of private concern, no aspects
of constitutional privilege are applicable. What basis remains for resisting strict
liability for defamation or for shifting the burden as to truth or falsity to the
plaintiff? Seditious libel is not at issue, self-government is not at risk, and the
search for truth through public dialogue is unimpeded whatever the outcome.
The precise issues have not been extensively litigated, but a consensus seems to
be emerging that if Gertz is inapplicable, all aspects of constitutional privilege
are gone and the states may shape the law of defamation uninhibited by the
First Amendment.8
Assuming that this is the correct view, how broadly does the dispensation
reach? What is the scope of Dun & Bradstreet as regards the consequences
stipulated? On this branch of the inquiry, three classes of cases must be considered.
First, many defamations have the characteristics of the Dun & Bradstreet
report: communications to a limited audience to accomplish a legitimate pri-
vate purpose. Such communications encompass credit reports, references sup-
plied to prospective employers by former employers, and other private assess-

ments such as those governing promotion of a university professor to tenure
rank. In these cases it is generally of no importance whether Gertz applies. Such
communications are ordinarily governed by a state privilege similar to Gertz in
practical application. States recognize that communications of this character
serve an important social purpose and that their transmission should not be
impeded by undue fear of liability in defamation. Accordingly, most states clas-
sify such communications as subject to a qualified privilege. They are protected
against a charge of defamation if uttered in good faith to a limited audience in
pursuit of a legitimate social objective—for example, extension of credit, offers of
employment, promotion to tenure.9 Vermont was atypical in refusing to recognize
a qualified privilege for the credit report at issue in the Dun & Bradstreet case.10
The scope and application of this kind of qualified privilege need not be
pursued. That is a matter properly left to the states. Each can determine the
extent to which it wishes to afford immunity to liability for private communica-
tions of this type—concerned with legitimate economic undertakings—to fa-
cilitate a freer flow of information at the risk of some increase in defamation.11
Second, many communications are simply spiteful attacks on individual
reputations.
Motorsports and Markley operated competing Harley Davidson distribu-
torships. Markley wrote a letter to Harley Davidson under the name “De John,”
a former customer of Motorsports, complaining of the service Motorsports
provided in connection with the purchase of a motorcycle. The letter was not
authorized by De John, and its contents were false. Writing in 1977, the Or-
egon Supreme Court ruled that Motorsports could recover presumed and puni-
tive damages and that the issue of fault need not be submitted to the jury. The
reasoning of the Oregon court was quoted with approval by the Supreme Court
in Dun & Bradstreet.12
In 1982 a supervisor of the Lapeyrouse Grain Corporation made a state-
ment to a customer accusing Jerry Nelson, an employee, of theft. On Nelson’s
suit for slander, the Alabama Supreme Court in 1988 ruled that Gertz did not
apply; Nelson could recover presumed and punitive damages without proof of
actual malice.13
In 1976 Douglas Smidt, a pilot, had several conversations with coworkers
in which he accused Cathleen Schomer, a flight attendant, of having engaged in
lesbian sex acts. (Schomer had rejected Smidt’s advances.) On Schomer’s suit
for slander, a California court in 1980 refused to apply Gertz to a case involving
a nonmedia defendant. Schomer could recover presumed damages without proof
of actual malice.14
In discussions with other medical practitioners, Dr. Russell Labowitz dis-

paraged the professional qualifications of Dr. Ronald Connolly. A Delaware
court ruled in 1986 that the statement did not relate to a matter of public
concern and that traditional state standards of defamation applied.15
In 1986 Peter Solber, an attorney, accused Michael Mullen, another attorney,
of being drunk. The accusation was made in a courtroom and was overheard
by about twenty people. A jury awarded Mullen $62,500 in compensatory
damages. The judgment was upheld on appeal in 1995 by an Illinois court.
Significantly, the case was remanded to permit Mullen to seek punitive dam-
ages. Actual malice was not required in this “purely private matter.”16
In all of these cases and in others of a similar character, First Amendment
protection is unwarranted.17 No criticism of government is implicated, no issue
of self-government is raised, and efforts to ascertain truth are not involved in
any socially significant way. The only expressive value at issue is the autonomy
of the speaker, giving vent to his spiteful views, and a possible autonomy inter-
est of the recipient in acquiring hurtful gossip. Participants in gossip of this
character have no special entitlement to First Amendment protection. What-
ever satisfactions they derive, they cannot claim constitutional protection for
shredding a neighbor’s reputation any more than they can claim a constitutional
privilege for shredding the neighbor’s garage or bicycle. Their interest in au-
tonomy cannot be pursued at the neighbor’s expense.
The appropriate regime in such cases is one of strict liability, full responsibility
for demonstrated and presumed damages, and truth as a defense with the speaker
bearing the burden of proof. Under such a regime, speakers will be deterred
from uttering defamatory statements except where the gain to be derived ex-
ceeds the harm to be inflicted in the event of falsehood—the latter measured by
the expected seriousness of the adverse impact and the probability of falsity.18
A possible third class of cases raises a more challenging issue. Here the
information conveyed is essentially the same as in the case of private gossip—
accusations of sexual impropriety, thievery, drunkenness, business or profes-
sional misconduct—but the accusation is made by a media defendant in a
public dissemination rather than by a private individual to a limited audience.
The Supreme Court has repeatedly reserved decision on the question of whether
media defendants have a broader constitutional privilege than nonmedia defen-
dants.19 But individual justices have stated that the same rule should apply to
both classes of defendants,20 the Supreme Court has decided nonmedia cases
without deviating from principles generally applicable,21 and most lower court
opinions have asserted that media and nonmedia defendants are covered by the
same constitutional privilege.22
Even so, in at least some cases the nature of the communication—by mass
media or by limited dissemination—will make a difference. Consider the credit
report at issue in Dun & Bradstreet. Surely the dissent in that case was correct
in arguing that the same information—the bankruptcy of a company, with im-
plications for the local economy and for employment opportunities—would
gain the protection of Gertz if it had been published in a local newspaper.23
What made the issue “private” in Dun & Bradstreet was the circumscribed
nature of the publication: it was not intended as a commentary on public issues
or as a contribution to a public dialogue. But this will not always be the case.
Some nonmedia discussions are part of a larger public debate whether they are
aired in pamphlets, in private correspondence, or in talk around the coffee
table: discussions about the government, the state of the local economy, racial
or religious or sex discrimination, or adverse impacts on natural or cultural
environments. These are public issues because they have public implications
and the commentary addresses these implications. In such cases the mode of
communication is irrelevant.
But does the analysis run the other way? Do “private” grievances remain
private despite the fact that they are conveyed by public media? An illustrative
opinion is Matus v. Triangle Publications, Inc.,24 an early case decided under the
aegis of Rosenbloom when constitutional protection hinged on whether the issue
under discussion was a matter of public concern. James Gerhart, a talk show
host, made statements on his radio program accusing Raymond Matus of over-
charging his wife for clearing snow from the family driveway. Constitutional
protection was rejected by a Pennsylvania court because it was not “a matter of
public concern that Gerhart thought he or his wife had been bilked by Matus
the evening before; it was but a matter of private pique.”25 Plaintiff recovered
damages of $13,500. (Triangle Publications, the broadcaster-employer of Gerhart,
also was held liable.) Matus seems right. A media personality should not gain
immunity for unfounded expressions of private pique simply because that per-
son has the means to disseminate the harmful defamation more broadly than
the average person.
But what of salacious gossip in which the public is keenly interested: a
possible romantic tryst between Elvis Presley and a former girlfriend (as in Brewer 26),
a charge that a belly dancer or other female entertainer is a prostitute (as in James
and related cases27), or a report that a famous athlete has run afoul of the law in
his nonpublic endeavors?28 In one sense these are matters of public interest
because at least some segments of the public are keenly interested in such matters.
As observed in James, gossip may sell more newspapers than straight news.
Moreover, such communications are entitled to First Amendment protection
against government efforts to censor information because it reflects adversely

on public morality or otherwise offends some official scruple. But is there a
substantial public interest in immunizing from liability in defamation instances
in which gossip is false and has resulted, or probably will result, in palpable
harm to a victim? As argued in Chapter 8 in discussing Brewer, James, and
similar cases, defamations of this character should not be sheltered by New York
Times. Among other things, the defamations in issue do not pertain to a public
controversy as required by Waldbaum.29 To be sure, the public has an avid
appetite for discussion of such matters, but do the issues have ramifications
beyond the immediate participants? In general, they do not. Accordingly, they
do not vest the protagonists with public figure status. Further, these defama-
tions should be stripped of the protections of Gertz as well as New York Times
and treated in the same manner as the credit report in Dun & Bradstreet—as
matters not addressing a public issue and thus subject to the traditional com-
mon law rules governing defamation: strict liability, presumed and punitive
damages, and a burden on defendant to prove truth.
Returning to the expressive values protected by the First Amendment, a
report of a possible romantic tryst between Elvis Presley and Anita Wood does
not involve a criticism of government, does not shed light on any issue of self-
government, and does not advance the search for truth except in the very nar-
row sense of serving the private interests of purveyors and consumers of gossip.
That interest does not trump defamation liability when the purveyors are indi-
vidual gossipmongers; no additional interests are called into play when gossip is
conveyed by media of mass communications capable of inflicting harm of a far
greater magnitude.
This is not to suggest that gossip can never be relevant to a public issue.
(See the discussion in Chapter 8.) The private practices of a public personality
may impinge on his public role—as where an athlete consorts with gamblers or
partakes of drugs that either enhance or diminish his performance in the ath-
letic arena. But if constitutional privilege is claimed, the publisher should be
required to establish a connection between the story and a public issue having
ramifications beyond the parties immediately concerned in the defamatory ut-
terance. To be sure, other kinds of gossip are not without social value. As
pointed out in Chapter 1, concern about adverse publicity is an important
means of achieving compliance with social norms, regardless of whether the
norms are embodied in formal rules of law.30 But that purpose is accomplished
only by truthful gossip—not here in issue. A reduction in purely private libels
does not hobble criticism of government or interfere with popular participation
in self-government or impede the ascertainment of socially significant truths.
Gossip has flourished since the beginning of time. The common law of
defamation strikes an appropriate balance in requiring truth if the gossip is
factual in character, is defamatory in content, and identifies a victim with suffi-
cient particularity to expose her to hatred, ridicule, or contempt in the eyes of
others. No constitutionally imposed “breathing space” is needed to ensure that
private gossip—unrelated to any issue of public concern—will continue to thrive.
The public’s appetite is insatiable, and the media are eager to serve.31
P A R T T H R E E
OTHER ASPECTS OF
DEFAMATION
AND FALSE LIGHT
106 OTHER ASPECTS O F D E F A M AT I O N A N D FA L S E L I G H T
GROUP LIBELS 107
F I F T E E N
GROUP LIBELS
J O S E P H B E A U H A R N A I S WA S P R E S I D E N T of the White Circle League, a Chi-

cago organization. In January 1950 he arranged to have leaflets distributed in
Chicago calling on the mayor and city council “to halt the further encroach-
ment, harassment and invasion of white people, their property, neighborhoods
and persons, by the Negro.” An appeal was made for “[o]ne million self respect-
ing white people in Chicago to unite,” adding that “[i]f persuasion and the need
to prevent the white race from becoming mongrelized by the negro will not
unite us, then the aggressions . . . rapes, robberies, knives, guns and marijuana
of the negro, surely will.”1
Beauharnais was prosecuted and fined $200 for violating an Illinois statute
making it a crime for a person to circulate a publication that “portrays deprav-
ity, criminality, unchastity, or lack of virtue of a class of citizens, of any race,
color, creed or religion which [exposes such citizens] to contempt, derision, or
obloquy or which is productive of breach of the peace or riots.”2 At his trial
Beauharnais sought to prove the truth of the statements in his leaflets, but his
offer of proof was rejected. The trial court also refused a charge, requested by
Beauharnais, that the jury must find “that the article complained of was likely to
produce a clear and present danger of a serious substantive evil that rises far
above public inconvenience, annoyance or unrest.”3
A sharply divided Supreme Court affirmed the Beauharnais conviction in
1952. The majority observed that the Illinois statute had been construed by
Illinois courts as prohibiting words “liable to cause violence and disorder,” a
standard grounded in the history of punishment of criminal libels because of

“their tendency to cause breach of the peace.”4 The statute was sustained as an
appropriate response to the history of civil strife engendered by racial and
religious hatreds. The state could seek to curb “false or malicious defamation
of racial or religious groups, made in public places and by means calculated to
have a powerful emotional impact on those to whom it was presented.”5
The Supreme Court majority sustained the disallowance of the defense of
truth on the ground that Beauharnais had failed to make a sufficient offer of
proof that his speech was uttered “with good motives and for justifiable ends”
as required by Illinois law.6 The Court also sustained the rejection of the charge
on “clear and present danger.” No one would contend that obscene speech may
be punished only upon a showing of such circumstances. “Libel . . . is in the
same class.”7
Four justices dissented on First Amendment grounds.8 They characterized
the Beauharnais leaflets as a protected petition of government for redress of
grievances and as protected speech on a public issue. They condemned the
Illinois statute for its breadth and vague contours. One opinion, by Justice
Jackson, attacked the conclusions of the majority on two critical issues: the
disallowance of the defense of truth, and the refusal to charge on “clear and
present danger.”9
The Beauharnais opinion, although never expressly disavowed by the Su-
preme Court, has been sapped of vitality by subsequent rulings. On the defense
of truth, Beauharnais is clearly at variance with Garrison v. Louisiana,10 which
held that truth must be accepted as an absolute defense without regard for the
motives with which the defamatory words were uttered.11 On the viability of
“group libel” actions, Beauharnais is at variance with New York Times12 and
Rosenblatt13 in which the Supreme Court invoked the “of and concerning” re-
quirement of defamation law to bar actions by government officials not identi-
fied in comments critical of the government agencies with which they were
associated. On the disallowance of the “clear and present danger” test, Beauharnais
cannot be reconciled with subsequent Supreme Court decisions on incitement—
notably Brandenburg v. Ohio14—which require a threat of imminent harm as a
prerequisite to imposing sanctions.
In Brandenburg the leader of a Ku Klux Klan group was convicted of advocat-
ing violence and other unlawful methods of terrorism as a means of accomplish-
ing industrial or political reform. The specific conduct consisted of burning a
cross at a Ku Klux Klan rally and making a speech in which Brandenburg said,
“[w]e’re not a revengeant organization, but if our President, our Congress, our
Supreme Court, continues to suppress the white, Caucasian race, it’s possible
GROUP LIBELS 109
that there might be some revengeance taken.”15 In a second speech Brandenburg

said he believed “the nigger should be returned to Africa, the Jew returned to
Israel.” The participants in the second episode were hooded. Some carried
weapons; the speaker did not.16
In reversing Brandenburg’s conviction, the Supreme Court ruled that the
First Amendment does not “permit a State to forbid or proscribe advocacy of
the use of force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or produce
such action.” The conduct here at issue did not involve “incitement to immi-
nent lawless action,” and thus Brandenburg’s conviction could not stand.17
When it declined to follow Beauharnais in New York Times Co. v. Sullivan,
the Supreme Court specifically noted that the group libel conviction in the
earlier case had been sustained on the ground that it had tended to cause “vio-
lence and disorder.”18 Although Beauharnais continues to be cited for general
propositions about defamation, it is inconceivable that the Supreme Court would
prohibit prosecution of racist speech as incitement (as it did in Brandenburg)
while upholding a prosecution against the same speech for group libel. The
thrust of the First Amendment is not to be evaded by mere labels.19
The problem of “hate speech” is a real one. But the law provides no remedy
when the speech consists of generalized comments made to the public at large.
To condemn such speech is to condemn an idea. And as the Supreme Court
observed in Gertz, under the First Amendment “there is no such thing as a false
idea. However pernicious an opinion may seem, we depend for its correction
not on the conscience of judges and juries but on the competition of other
ideas.”20 Group libel laws, by their very nature, are incompatible with the First
Amendment.
But not all hate speech is beyond challenge. When directed at specific
individuals or discrete groups for the purpose of intimidation, harassment, or
ridicule, derogatory comments based on race, religion, or gender may be chal-
lenged as intentional infliction of emotional distress or as a form of discrimina-
tion actionable under laws protecting equality in the workplace, in educational
institutions, and in access to public accommodations—a branch of the law
presently generating a multitude of public and private enforcement actions. The
problem of hate speech is revisited in Chapter 37, which discusses the impact
of the Internet on the actionability of harmful speech.
A R E C E N T AT T E M P T T O I M P O S E L I A B I L I T Y for the defamation of a group arose

out of a discussion on a television talk show. In 1996 the Oprah Winfrey show
broadcast a program entitled “Dangerous Food.” The first segment discussed

an outbreak of “Mad Cow Disease” in Great Britain and of a neurological
disorder, Creutzfeldt-Jakob Disease (CJD), that could be contracted by eating
meat from a contaminated animal. One guest was Beryl Rimmer from England
whose granddaughter was in a coma suffering from a form of CJD. Ms. Rimmer
believed her granddaughter had contracted CJD from eating a hamburger con-
taminated by Mad Cow Disease. CJD is invariably fatal.
A second segment considered the question, “Could it happen here?” Sev-
eral guests discussed precautions taken by the government and industry to pre-
vent outbreaks of Mad Cow Disease in the United States and to exclude con-
taminated beef from the U.S. market. One guest, an outspoken vegetarian,
asserted that the United States was at risk of an outbreak similar to that in
England and that U.S. beef was not safe. Oprah expressed alarm and exclaimed,
“It has stopped me cold from eating another burger. I’m stopped.” Oprah’s
alarm was apparently contagious. Beef markets crashed when the program aired,
and cattle growers sustained substantial losses.
A group of Texas cattlemen, representing others similarly situated, sued
those associated with the Oprah Winfrey show for the losses they had sus-
tained. Among multiple causes of action were claims for defamation and prod-
uct disparagement. A U.S. district court allowed the disparagement claim to go
to the jury with an instruction that the disparaging statement must be “of and
concerning” a plaintiff ’s specific property: “[T]he disparaging words must refer
to an ascertained or ascertainable business, and it must be the Plaintiff ’s. . . .
While it is not necessary that the publication have mentioned a Plaintiff by
name, the facts and circumstances must be such [that] they point to the Plaintiff
as the person concerning whom the disparaging statements are made.” The jury
found for Oprah on the disparagement claim.21
The court did not allow the defamation count to go to the jury. It dismissed
the claim on the ground that Oprah’s statements were not “of and concerning”
the plaintiffs. The court relied on the Supreme Court’s decision in Rosenblatt v.
Baer22 in ruling that “the jury could not find liability . . . without the constitu-
tionally required evidence that the asserted implication of the published state-
ment was made specifically of and concerning the plaintiff.”
None of the Plaintiffs were mentioned by name on the . . . Show, and . . . this
program did not mention by name the State of Texas, the Texas Panhandle, or
West Texas. [One plaintiff ] testified that the statements [were] made about him as
well as the rest of the cattle feeding industry. . . . [T]here are about a million
cattlemen in the United States and . . . the states of Kansas and Colorado have
feeding operations similar to [those] in Texas.23
GROUP LIBELS 111
T H E C O U R T I N T H E O P R A H W I N F R E Y C A S E was on sound ground in finding

that the “of and concerning” requirement is mandated by the First Amend-
ment. Although the Supreme Court has not commented further after Rosenblatt,
other lower court decisions are in accord.
In Michigan United Conservation Clubs v. CBS,24 plaintiffs sued as members
of a group of over 1 million sports hunters in Michigan, alleging that they had
been defamed by two CBS programs critical of sports hunters. The U.S. district
court ruled that the programs were not “of and concerning” any individual
hunter, expressing the need to avoid a “conflict with First Amendment values”:
If plaintiffs were allowed to proceed with this claim, it could invite any number of
vexatious lawsuits and seriously interfere with public discussion of issues, or
groups, which are in the public eye. Statements about a religious, ethnic, or
political group could invite thousands of lawsuits from disgruntled members of
these groups claiming that the portrayal was inaccurate and thus libelous. Such
suits . . . would result in the public receiving less information about topics of
general concern.25
Similarly, in Schuster v. U.S. News & World Report, Inc.,26 a U.S. district
court relied on the First Amendment in rejecting a defamation claim of a dis-
tributor of laetrile, a controversial drug said to be a cure for cancer. The alleg-
edly defamatory statements concerned laetrile distributors generally. To hold
that such statements were of and concerning particular individuals “would chill
heated public debate into lukewarm pap.”27
Michigan United and Schuster, as well as the Oprah Winfrey case, are in
accord with the Supreme Court’s decision in Rosenblatt28 and should be fol-
lowed in future decisions concerned with group libel.29 By their very nature,
group libel claims are incompatible with the First Amendment. The challenged
assertions express ideas about groups or public policies. They do not target
identifiable individuals, and they cannot impair the reputations of individuals
with the particularity required by the law of defamation.
S I X T E E N
LOOKING FOR LOVE? SORRY, WRONG NUMBER
I N M A R C H 1985 T H E O N E I D A D I S PAT C H published a classified advertise-

ment that read “middle aged female looking for male companionship ages
18–22. Call anytime, 829-2868, ask for Karen.” The telephone number was
that of Karen Vaill, who had not placed the advertisement or authorized its
placement. The ad was one of 3,074 classified ads the Oneida Dispatch pub-
lished that month. The paper had received a handwritten request, purporting to
be from Karen Vaill, accompanied by a three-dollar cash payment. It had taken
no steps to authenticate the request.
Ms. Vaill testified that following publication of the ad she had received
numerous telephone calls, some obscene; she had also been the target of sexual
overtures, including one instance in which a strange man had come to her door
in purported response to the advertisement. She had changed her listed tele-
phone number to an unlisted one, resulting in curtailment of her earnings as a
part-time hairdresser; she had become fearful for the safety of herself and of her
two children who lived with her; and she had become nervous and upset. She
sought to recover for lost earnings and for mental anguish, arguing that the
newspaper had been negligent in failing to authenticate placement of the ad by
calling the number listed in the ad.1
Relying solely on state law, a New York trial court rejected Vaill’s claim.
Holding that the newspaper was under no obligation to call the number listed in
the ad, the court observed:
[D]efendant is an active component of the public news-distributing community.
The classified advertisements which run in its newspapers serve at least two
LOOKING FOR LOVE? SORRY, WRONG NUMBER 113
functions—they are an integral part of and facilitator of commerce in the area

served by the paper, and they underwrite in part the cost of publication of the
news-carrying vehicle. . . . [A] need for pre-publication telephone authentica-
tion—surely involving multiple calls to make contact in at least some instances—
would impose an unreasonable burden on a daily newspaper, accompanied of
course by increased cost in this form of advertising, so frequently used by the
casual advertiser.2
The court in Vaill did not examine the First Amendment implications of its
ruling. To what extent does the Constitution compel the conclusion reached in
Vaill ?
Vaill poses important issues in two very different types of cases. In one, the
publisher of a defamatory statement is a single person or a single entity, and the
defamed individual seeks to hold that party accountable. In the second class of
cases, the originator of the defamatory statement employs a conduit to achieve
publication of the statement—an intermediary such as the Oneida Dispatch in
the Vaill case—and the defamed individual seeks to impose liability on the
intermediary. From the plaintiff ’s perspective, intermediary liability is critical
in cases in which the originator is unknown (as in Vaill ) or is insolvent or is
otherwise not amenable to suit.
THE SINGLE-ENTITY ORIGINATOR

In Gertz the Supreme Court left open any questions that might arise “if a State
purported to condition civil liability on a factual misstatement whose content
did not warn a reasonably prudent editor or broadcaster of its defamatory po-
tential.”3 Conceivably, a publisher could be reckless as to the falsity of an asser-
tion but not know that it is defamatory—the defamatory implications may
become apparent only as further facts unfold.4 In one of the few cases squarely
confronting the issue, Wayne Newton, an entertainer, sued NBC for defama-
tion. Newton claimed NBC had asserted that the Mafia had a hidden stake in
Newton’s Las Vegas casino (the Aladdin Hotel). The trial court found that the
assertion was both false and defamatory and that NBC had acted with actual
malice: “The clear and inescapable impression made by the broadcasts was that
[Newton] did not have enough money to buy the Aladdin Hotel so he called a
friend, Guido Penosi, who had ties to organized crime; and that Penosi helped
him raise the money and thus obtained a hidden interest in the Aladdin Hotel.”
Thus even if NBC had unintentionally left the impression that organized crime
had financed Newton’s purchase of the casino, that impression “should have
been foreseen” by NBC, and the failure to foresee it “shows a reckless disregard
for the truth.”5
The court of appeals reversed: “The district court’s standard of what ‘should
have been foreseen’ is an objective negligence test while the actual malice test of
New York Times is deliberately subjective.”6 In sum, there must be subjective
awareness of both falsity and defamatory potential to support a finding of actual
malice.
Similarly, if a publisher defames a private person while discussing an issue
of public concern, liability under Gertz is dependent on proof of “fault.”7 At the
very least, the concept of fault requires negligence—a failure to exercise reason-
able care. The “reasonably prudent editor or broadcaster” to which Gertz refers
is a person who takes reasonable precautions to avoid defamation. These would
encompass care respecting (1) the defamatory connotation conveyed by the
utterance, (2) the application of that utterance to an identifiable person, and (3)
the truthfulness of the allegedly defamatory utterance.8 Since the standard of
care, to make any sense, must apply to all aspects of the defamatory statement,
a separate requirement of awareness of defamatory potential appears superflu-
ous. The publisher must exercise care on all aspects of a potentially defamatory
statement.
By contrast, if the alleged defamation does not pertain to a public person or
a public issue but is solely a private matter, states are empowered under Dun &
Bradstreet9 to shape standards of liability—including strict liability—free from
the constraints of constitutional privilege. Presumably, a state in such cases
could hold that a person is accountable for a false statement not known to be
defamatory as well as for a defamatory statement not known to be false—in
either instance without regard to whether due care had been taken.
An example is provided by a 1929 English case. Michael Corrigan, a well-
known figure on the sporting scene, had his picture taken in the company of a
young woman he introduced as his fiancée. The Daily Mirror published a pho-
tograph of the couple with the caption “Mr. M. Corrigan, the race horse owner,
and [Miss X,] whose engagement has been announced.” Unknown to the paper,
Corrigan was already married. Mrs. Corrigan brought a libel action, claiming
she had been defamed: persons reading the paper could conclude that she had
been cohabiting with a man who was not her husband. The Court of King’s
Bench ruled that Mrs. Corrigan had stated a viable claim, notwithstanding the
newspaper’s innocence; a jury could find that she had been defamed.10 Not only
was the publisher unaware of the falsity of Mr. Corrigan’s statement; it had no
reason to believe the photograph would defame anyone.
The issue has yet to be litigated in the context of constitutional privilege. If
states are empowered to punish defamatory statements not known to be false in
the context of purely private libels, they also may be able to impose sanctions
for falsehoods not known to be defamatory. The question is unresolved at the

present time.
IMPOSING LIABILITY ON INTERMEDIARIES

The issue is more complex when more than one person or entity is engaged in
the publication process (for purposes of this discussion, a firm and its employ-
ees and agents are considered to be a single entity). For example, newspapers
and magazines publish a variety of writings originating with others, including
advertisements, contributions from freelance authors, and letters to the editor.
Broadcasters carry all of these or close analogues: programs produced by others
and released by network transmission or by syndication of tapes, comments by
viewers and listeners conveyed during call-in talk shows, and discussions in
broadcast studios among invited guests and audiences. Finally, Internet services
afford participants access to largely unpoliced bulletin boards and to other modes
or communication among interconnected computer users. Who is responsible
for defamation in these multiparty configurations?
First, the originator of the defamation, if she can be identified, is account-
able in accordance with the standard of fault applicable to the particular com-
munication—actual malice, negligence, or strict liability, as the case may be.
Liability is the same as in the case of a defamation effected by a single party.
Second, any other participant in the publication process is held accountable if
that person acts with the requisite degree of fault. Thus a publisher of a contri-
bution from an independent author on an issue of public concern is liable if he
knew, or with the requisite degree of care he should have known, that the
publication satisfied the requirements of an actionable defamation—that is,
that it was defamatory, that it referred to an identifiable plaintiff, and that it was
false. For example, in the Gertz case discussed in Chapter 9, the publisher was
held liable in defamation along with the author because the publisher had obvi-
ous reasons to doubt the accuracy of the story and proceeded to publish with
reckless disregard for the truth.11 (In this instance actual malice was proved,
subjecting both the author and the publisher to punitive damages.) A newspa-
per, broadcaster, or publisher cannot abdicate its responsibility to exercise ap-
propriate care in accordance with the standard of care applicable to a particular
communication.
By contrast, in Herbert v. Lando, discussed in Chapter 22, the Atlantic
Monthly published an inherently plausible article by a responsible journalist
who had provided satisfactory answers to all the magazine’s questions during
the editorial process. In a defamation action by the public figure who was the
subject of the article, the Atlantic Monthly was exonerated even though the case
was set for trial on whether the author had uttered falsehoods with actual mal-
ice.12 A publisher is not liable if it exercises the degree of care appropriate for
the defamatory statement at issue.
Three questions remain. One involves strict liability. If a defamatory com-
munication is not concerned with a public issue, can Dun & Bradstreet be
invoked to hold an innocent publisher accountable? Defamation cases shed
little light on this issue, but a clear answer can be derived from other First
Amendment adjudications. In Smith v. California,13 a bookseller was prosecuted
for selling obscene books. The Supreme Court held that the First Amendment
precluded prosecution absent evidence that the bookseller had known of the
obscene contents of the books he had sold.14 In Manual Enterprises v. Day,15 a
publisher’s magazines were barred from the mail on the ground that they car-
ried advertisements for obscene materials. The Supreme Court intervened again,
requiring proof that the publisher knew that the materials advertised were ob-
scene: “[P]ublishers cannot practicably be expected to investigate each of their
advertisers.”16 A contrary rule would lead publishers to “refrain from accepting
advertisements from those whose own materials could conceivably be deemed
objectionable by the Post Office Department.”17
Accordingly, publishers cannot be subjected to strict liability if they carry
advertisements that are defamatory but are not reasonably identifiable as such
at the time of publication.18 The same rule applies to other instances in which
an entity serves solely as a conduit for the communications of others: the local
affiliate of a television network19 or the operator of an unpoliced computer
website.20 Accordingly, the outcome in the Vaill case discussed at the outset is
probably compelled by the First Amendment.
But this raises the second question: When can an entity claim to be acting
as an innocent conduit? Is it permissible for a broadcaster to say, “We open our
microphones so that listeners may air their views. We do not select or censor. If
defamations are uttered, the responsibility rests with the spokesperson, not
with us.” Can a newspaper make a similar claim as regards letters to the editor?
Can a magazine or a book publisher take the same stance on independently
authored contributions? The issue is unresolved, but complete abdication is
probably not an option in most cases.
The third and final question is, What is the appropriate standard of care in
multiparty configurations in which the media defendant claims it is acting solely
as a conduit? Only a tentative response can be ventured at this point. To the
extent that a publisher in fact exercises any control—selecting or editing contri-
butions—the publisher should employ measures, reasonable under the circum-
stances, to guard against actionable defamations.21 This may mean no care or
minimal care in the case of typical commercial and classified advertisements,

moderate care in the case of political advertisements and letters to the editor,
and a high level of care for journalistic contributions from outside authors.
Other formulations are conceivable. By contrast, if a facility is expressly de-
signed for unpoliced expression—as may be the case with at least some com-
puter usages and at least some call-in radio talk shows—the service provider
may be immune from suit. Some of these newer modes of discussion may be
analogized to town hall meetings or telephonic communications; neither the
town hall nor the telephone company is held accountable for defamatory utter-
ances made while using their facilities.22
New technology and new approaches to existing technology pose problems
for the law of defamation, as they do for other areas of the law. A full set of
solutions has yet to be fashioned. As regards the Internet, however, Congress
has enacted legislation affording almost complete immunity to independent
service providers acting solely as conduits for expressions prepared by others.
Issues pertaining to the Internet will be discussed in Chapter 37.
S E V E N T E E N
BLACKMAIL, TREASON, HYPOCRISY, AND LIES
I T H A S L O N G B E E N R E C O G N I Z E D that an opinion devoid of factual content is

not an actionable defamation. In Gertz the Supreme Court declared that under
the First Amendment “there is no such thing as a false idea. However perni-
cious an opinion may seem, we depend for its correction not on the conscience
of judges and juries but on the competition of other ideas.”1 The principle is
plain. But its application depends on a clearer conception of the scope of
nonactionable opinion.
The Supreme Court has provided some guidance. In Greenbelt Cooperative
Publishing Ass’n v. Bresler,2 a 1970 opinion previously noted, a real estate devel-
oper was involved in negotiations with a city concerning the transfer and develop-
ment of different parcels of land. In a city council meeting open to the public,
Bresler was charged with “blackmail” by one of the participants. Greenbelt
reported the accusation, and Bresler sued for defamation.3 The Supreme Court
held that the word blackmail was not defamatory in this context because it was
“rhetorical hyperbole, a vigorous epithet.”4 It could not reasonably be con-
strued to charge that Bresler had committed a criminal act.
Similarly, in Old Dominion Branch No. 496 v. Austin,5 decided in 1974,
Old Dominion was a labor union. It denounced Austin as a “scab” for failing to
join the union and then published a definition of a scab as one who was a
“traitor to . . . his country.”6 The Supreme Court reversed a defamation award
in favor of Austin, holding that the reference to traitor was “rhetorical hyper-
bole” and thus not actionable as a false statement of fact.7 The epithet could not
be viewed as charging Austin with the crime of treason.
BLACKMAIL, TREASON, HYPOCRISY, AND LIES 119
To the same effect is Hustler Magazine v. Falwell,8 a 1988 opinion discussed

in Chapter 12, in which the Supreme Court rejected Jerry Falwell’s action
premised on an insulting parody in Hustler magazine. Critical to the Court’s
rejection of Falwell’s claim was a jury finding that the parody could not “reason-
ably be understood as describing actual facts about [Falwell] or actual events in
which [he] participated.”9
The definitive statement of the Court’s position came in 1990 in Milkovich
v. Lorain Journal Co.10 Michael Milkovich, the wrestling coach at Maple Heights
High School in Maple Heights, Ohio, was involved in an altercation at a wres-
tling match. The incident became the subject of administrative and judicial
proceedings, the outcome of which was favorable to Milkovich and his team.
Diadiun, a columnist for a local newspaper, wrote an article about the proceed-
ings headed “Maple beat the law with the ‘big lie.’ ” In the article he stated,
“Anyone who attended the meet . . . knows in his heart that Milkovich . . . lied
at the proceeding after . . . having given his solemn oath to tell the truth.” On
suit by Milkovich for defamation, an Ohio court ruled that even though Milkovich
was not a public figure, he had no claim in defamation because the article was
constitutionally protected opinion.11 The Supreme Court reversed.
Initially, the Court considered Bresler, Austin, and Falwell and the excerpt
from Gertz quoted earlier. It denied that the statement in Gertz “was intended
to create a wholesale defamation exemption for anything that might be labeled
‘opinion’ ”:
If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of
facts which lead to the conclusion that Jones told an untruth. Even if the speaker
states the facts upon which he bases his opinion, if those facts are either incorrect
or incomplete, or if his assessment of them is erroneous, the statement may still
imply a false assertion of fact. Simply couching such statements in terms of opinion
does not dispel these implications; and the statement, “In my opinion Jones is a
liar,” can cause as much damage to reputation as the statement, “Jones is a liar.”12
The critical question is whether a statement “is sufficiently factual to be

susceptible of being proved true or false.”13 No separate exemption for opinion
was considered necessary. In this case the question was “whether a reasonable
factfinder could conclude that the statements in the Diadiun column imply an
assertion that . . . Milkovich perjured himself in a judicial proceeding. We
think this question must be answered in the affirmative.”14
C A S E S I L L U S T R AT I V E O F FA L S E I M P L I C AT I O N S O F FA C T include Cuba’s United

Ready Mix, Inc. v. Bock Cement Foundations.15 Bock stated that Cuba’s was
delivering “inferior material.” A Missouri court ruled that the statement was
actionable because it could be understood to mean that the products of Cuba’s
were inferior by objective standards of quality set by trade custom.16 In Teilhaber
Mfg. Co. v. Unarco Materials,17 T and U produced competing storage racks. U
purported to test T’s product but in fact tested a hybrid including some ele-
ments not originating with T. The test yielded results unfavorable to T, which U
published in a report circulated to prospective buyers of racks. A Colorado
court held that the report was actionable because U’s negative opinion was
premised on a false predicate—that is, that the tested rack originated with T.18
Some lower courts appear to afford more latitude for opinion than Milkovich
would sustain. In Moldea v. New York Times Co.,19 a book reviewer wrote that
Moldea’s book on professional football contained “too much sloppy journalism
to [allow readers to] trust the bulk” of the volume.20 The reviewer cited six
highly specific examples to support his conclusion. The Court of Appeals for
the District of Columbia initially ruled that the assertions given as the ex-
amples could be proved true or false, and thus the book review was not
nonactionable opinion.21 On rehearing, the court reversed itself and adopted a
special standard for book reviews: opinions in reviews would be actionable
only where the interpretations were unsupportable by reference to the written
work.22 Liability would ensue only when “no reasonable person could find that
the book’s characterizations were supportable interpretations” of the book.23
Apparently, a reviewer is protected if a book “hints at [the] notion” expressed
in the review.24
Admittedly, some statements are difficult to classify as sufficiently factual
to be actionable.25 Moldea was not such a case.26 The court of appeals prevented
a trier of fact from determining whether straightforward defamatory allegations
were true or false.
Nonactionable opinion includes humorous remarks not intended to be
taken seriously;27 criticisms stated in broad terms (e.g., denouncing chiroprac-
tic medicine as a “dangerous cult”);28 a wide variety of epithets including “bas-
tard,”29 “fascist,”30 and “racist”;31 and colorful rhetorical flourishes.32 Perhaps
the best-known case of this genre is Ollman v. Evans.33 Evans and Novak, syndi-
cated columnists, opposed the appointment of Ollman, a Marxist political science
professor, to head the government department at the University of Maryland.
They quoted an unnamed political scientist as saying “Ollman has no status
within the profession, but is a pure and simple activist.”34 The president of the
University of Maryland rejected the appointment, and Ollman sued Evans and
Novak for defamation. A divided court of appeals held that the Evans-Novak
statement was nonactionable opinion. Among the points raised in multiple opin-
ions were questions about how to interpret the statement: Did it really mean no
status at all or simply a low status? And there were questions about how the
statement might be proved true or false: What does no status or low status mean
in a field such as political science, riven by ideological discord?35
In general, courts give persons wide latitude in expressing their views—
even in the most extreme language—if the statement does not imply an asser-
tion sufficiently factual to be susceptible of proof of falsity in a judicial proceed-
ing. The protection accorded opinion against a defamation charge does not
turn on whether plaintiff is a public or a private figure.36 But the plaintiff ’s
status may make a difference if the action is brought on a theory other than
defamation.
S Y LV I A B O W M A N , A G E S I X T Y , had been working for the Massachusetts De-

partment of Public Welfare for twenty years. In 1987 she decided to run for
president of Local 509 of the Service Employees International Union, which
represented 8,700 public and private employees engaged in social work. She
took a leave of absence in October to campaign in the union election. In her
absence David Heller, a coworker opposed to Bowman’s bid for office, prepared
and circulated two photocopied representations, in each case superimposing a
photograph of Bowman’s face on photographs obtained from pornographic maga-
zines: “In one of the photographs, the model is nude from the waist down,
except for garters, and is posed toward the camera with her legs wide apart as
she holds a banana next to her exposed breasts. In the other photograph, the
model is entirely naked, and appears to be engaged in masturbation.”37
Heller distributed his handiwork to five coworkers, who produced more
copies for others in the office in which Bowman and Heller worked. When she
returned from her campaign leave in November, Bowman learned of the sexually
explicit photocopies and of their distribution throughout the office. Bowman
experienced shock and severe stress and testified that she had felt “degraded,
publicly humiliated, and vulnerable upon seeing the photocopies.”38 She had to
undergo psychotherapy for post-traumatic stress disorder and was not able to
continue to work for the department.
The trial judge found that Heller’s conduct was extreme and outrageous—
outside all reasonable bounds of civilized behavior—and was aimed at causing,
and did cause, severe emotional harm. He entered a judgment for Bowman for
$35,000 for intentional infliction of emotional distress. On appeal to the Su-
preme Judicial Court of Massachusetts, the judgment was affirmed by a divided
court.39
The majority ruled that, notwithstanding her bid for the union presidency,
Bowman was not a public figure. Accordingly, her recovery should stand. The
union election did not receive public attention, and there was nothing to indi-
cate that the result of the election would be felt by persons other than partici-
pants in the election. The election “had no more public controversy than the
usual election of a president of a social club or an election to the governing
board of an educational institution, to the directorship of a corporation, or to
the governing body of a condominium association.” Bowman was not a public
figure “because the circumstances did not involve a public controversy.”40
The dissent argued that Bowman, as a candidate for union office, was a
public figure for purposes of the election. Accordingly, she had to show that
Heller had acted with actual malice as required by New York Times—that is, that
he had disseminated falsehoods about Bowman knowing them to be false or
with reckless disregard of whether they were false. Since Bowman did not con-
tend that Heller’s representations were intended to be taken as truthful repre-
sentations about her, she could not prevail. The same conclusion followed from
federal labor policies applicable to union elections, which afforded the same
latitude for comment as New York Times. These policies required that actual
malice be shown—and it had not been shown in this case.41 Indeed, actual
malice could not have been shown under the circumstances at issue because
there were no expressions expressly or impliedly asserting factual statements.
I F T H E P R E M I S E S O F T H E M A J O R I T Y O P I N I O N are accepted—that Bowman

was a private person not involved in an issue of public concern—then its con-
clusion is correct. Under Dun & Bradstreet the communication is not protected
by constitutional privilege, and the judgment can be sustained as in accord with
the law governing intentional infliction of emotional distress (see Chapter 14).
Heller intended to cause, and succeeded in causing, severe emotional distress
by conduct extreme and outrageous as judged by prevailing community norms.
(A reckless disregard for the infliction of severe emotional distress also would
have sufficed.)
In a similar case, Rick Herring drew a cartoon depicting Sherry Linebaugh
and a male coworker in a sexually compromising position; he posted the car-
toon on the workplace bulletin board. A Michigan court ruled that the case
should go to the jury on intentional or reckless infliction of emotional distress.42
Pornography is not essential to the outcome. Disk jockeys employed by
SFX Broadcasting named Annette Esposito-Hilder, recently married, winner of
their “Ugliest Bride” contest. They made disparaging remarks about her ap-
pearance, and, in a departure from their usual practice, they disclosed her full
name and her place and position of employment and commented on her rela-
tions with her superiors. (Esposito-Hilder was the business manager of a com-
peting broadcast company.) A New York appellate court ruled that although the
offensive remarks were “pure, subjective opinion,” Esposito-Hilder could pur-
sue an action for intentional infliction of emotional distress. She was a “private
individual rather than a public figure,” and “the conduct in question involved
no matter of public concern.” That the plaintiff was a business competitor of
SFX supported the inference that the disk jockeys intended to injure her.43
Conduct of this character also may be reached as an actionable invasion of
privacy.44 The Miami Daily News published an article with the statement “Wanna
hear a sexy telephone voice? Call and ask for Louise.” The article gave the
telephone number of the business at which Louise Harms was employed, result-
ing in a flood of telephone calls inflicting severe emotional distress. A Florida
court agreed that the right to privacy must yield to discussions of matters of
public concern. But here there was no connection with anything newsworthy, so
the statement was actionable.45
O N T H E O T H E R H A N D , if Bowman were a public figure, as the dissent cor-

rectly contended, sexually explicit caricatures would have been protected under
the doctrine of constitutional privilege—without regard to how offensive they
might have been. The governing decision is Hustler Magazine v. Falwell,46 previ-
ously discussed. There Jerry Falwell, a well-known evangelist and general public
figure, was the subject of a parody depicting him as drunk and immoral and a
hypocrite. Recovery was denied because a jury had found that the parody was
not intended or understood to convey factual information. Accordingly, it con-
stituted constitutionally protected opinion. An action for intentional infliction
of emotional distress was expressly disallowed. In general, Hustler is understood
to preclude actions for emotional distress in circumstances in which constitu-
tional privilege would constitute a bar to an action for defamation. If no false
factual information is conveyed, the law appears to impose no limit on the
abuse or ridicule to which a public figure may be subjected. A number of
decisions have followed Hustler in denying recoveries to female public figures
caricatured in a manner similar to the depictions in Bowman v. Heller.47
An open question concerns attacks on private persons made in connection
with a public issue. Suppose that the court in Bowman v. Heller had concluded
that the union election raised a public controversy within the union’s ranks (the
correct ruling), but assume that Bowman had not been a candidate or otherwise
active in the union election. Suppose that Heller, in his pamphlet concerning
the union election, had chosen Bowman for his pornographic portrayals be-
cause she was a female worker whose features provided a good basis for carica-
ture. Under these circumstances, the caricature is not actionable as defamation
since it is not intended or understood to convey factual information. Can indig-
nities be heaped upon anyone, even an uninvolved private person, as long as the
message concerns a public issue? Gertz is of no assistance because falsity is not
the basis for the claim. Dun & Bradstreet appears unavailable because the depic-
tion is pertinent to a public controversy. In the Milkovich opinion, protecting
assertions devoid of factual content, the Supreme Court attached no impor-
tance to the classification of plaintiff, who had been held to be a private person
in the state court litigation.48 The issue is extremely troublesome, apparently
not perceived in the cases and unresolved at this time.49
TO SUMMARIZE:
1. An adverse opinion about a public official or about a public figure involved in a

public debate is beyond challenge as defamation because it cannot be proved to
be true or false. Moreover, it cannot be challenged on other grounds, such as
intentional infliction of emotional distress, because to do so would impoverish
public debate. To put the matter differently, an opinion—like a group libel—is
an idea, not a fact.
2. An adverse opinion about a private person, not uttered in connection with a

public debate, does not pose a First Amendment problem because remedial
action in this instance has no bearing on public discourse. Even so, defamation
is not available because truth is not at issue. But intentional infliction of
emotional distress is a viable theory if the opinion (such as a pornographic
caricature) is extreme and outrageous as measured against prevailing community
standards and is intended to inflict harm. The analogue here is to “hate speech,”
which is actionable if directed at a specific individual or a discrete group of
persons for the purpose of intimidation, harassment, or ridicule (see Chapters
15 and 37). Invasion of privacy may also be a tenable theory in cases of this
character.
3. An adverse opinion about a private person uttered in connection with a

discussion of a public issue poses a conundrum. The courts to date have
provided little guidance on this configuration. Perhaps such cases are rare.
L A C O S A N O S T R A AT Y O U R S E R V I C E 125
E I G H T E E N
LA COSA NOSTRA AT YOUR SERVICE
R E C O V E R Y I N D E FA M AT I O N I S B A R R E D —even if the utterance injures the

plaintiff ’s reputation—if the utterance is true (see Chapter 3). At common law a
defamatory statement was presumed to be false; truth was an affirmative defense.
In implementing constitutional privilege, the Supreme Court has reversed the
procedural posture: requiring the plaintiff to prove falsity, at least in cases in
which media defendants discuss public issues.
Maurice Hepps was the principal stockholder of a corporation franchising
a chain of stores—known as Thrifty stores—that sold beer, soft drinks, and
snacks. The Philadelphia Inquirer published a series of articles stating that
Hepps and his company had ties to organized crime and had used those ties to
influence Pennsylvania’s legislative and administrative processes to obtain gov-
ernment actions favorable to Thrifty stores. On Hepps’s suit for defamation,
the newspaper raised the defense of truth. The trial judge rejected a state
statute placing on defendant the burden of proving truth and ruled that Hepps
had the burden of proving falsity. Hepps testified at length that the state-
ments at issue were false, and he extensively cross-examined the author of
the stories as to the accuracy of the assertions made. The newspaper in-
voked Pennsylvania’s shield law, which enables media reporters to refuse to
divulge their sources—thereby restricting the scope of Hepps’s inquiry into the
basis for the defamations at issue. The jury returned a verdict in favor of the
newspaper.1
Hepps appealed. The Pennsylvania Supreme Court reversed, holding that
the trial judge erred in failing to follow the state statute on burden of proof. It
reasoned that it is “preferable to place the burden upon the party . . . who
presumably has peculiar knowledge of the particular fact in issue”:
For example, in the context of libel, if the written communication accuses plaintiff
of being a murderess, a burglar or a prostitute, the defendant knows what
particular event he is referring to and the source of his information, whereas the
plaintiff, not knowing these facts, would experience great difficulty in refuting
these charges by showing their falsity. Particularly, where the accusation is totally
general and without the specificity necessary for a response, the absence of [a
presumption of falsity] would force the plaintiff [to prove a negative].2
In a 1986 opinion the U.S. Supreme Court reversed the Pennsylvania court,
in effect reinstating the jury award adverse to Hepps. It reasoned that in cases
of uncertainty “the allocation of the burden of proof will determine liability for
some speech that is true and some that is false, but all of such speech is unknowably
true or false.” In the face of ambiguous evidence, where the scales are in uncer-
tain balance, “the Constitution requires us to tip them in favor of protecting
free speech. To ensure that true speech on a matter of public concern is not
deterred, we hold that the common-law presumption that defamatory speech is
false cannot stand when a plaintiff seeks damages against a media defendant for
speech of public concern.”3 The Court observed that its decision increased only
marginally the burdens the plaintiff must already bear in proving fault; evidence
offered by plaintiff on the publisher’s fault in adequately investigating the truth
of the published statement will generally encompass evidence of the falsity of
the matters asserted.4 It conceded that “the plaintiff ’s burden in this case is
weightier because of Pennsylvania’s ‘shield’ law, which allows employees of the
media to refuse to divulge their sources”; but the Court refused to reach this
issue because it had not been addressed by the courts below.5
The two opinions in Hepps address pertinent aspects of the problem of
allocating burdens in connection with proof of truth or falsity. The Pennsylvania
court raises an important point about accusations general in character. If a
woman is accused of being a prostitute, how does she prove the charge is false?
To be sure, she can testify that the accusation is groundless. But what can she
offer by way of corroboration? Testimony by men with whom she has had sex
without exacting a fee? Testimony by men who had sought to purchase sexual
favors from her but whom she rebuffed? The publisher knows what it had in
mind, and it can assert the basis for its defamatory utterance—the facts it
claims will support the truthfulness of the utterance.
But this goes to the burden of coming forward with evidence, not with the
ultimate burden of proof. Absent the reporter’s privilege, plaintiff could ascer-
tain in discovery the basis for defendant’s defamatory utterances. The key prob-
L A C O S A N O S T R A AT Y O U R S E R V I C E 127
lem is not burden of proof but the imposition of appropriate limits on reporter’s
privilege. If the plaintiff has the burden of proving falsity, defendant should not
be permitted to impede that inquiry by invoking a shield law. If, on the other
hand, a generous shield law is vital to the functioning of the press, the press
should bear the burden of proof as to truth. The press should not prevail on
both counts.6
With this caveat, the Supreme Court opinion in Hepps is an acceptable
although troublesome accommodation of conflicting interests. The allocation of
burden of proof may work an injustice in cases in which evidence is meager. If
a newspaper runs a story that plaintiff murdered his wife twenty years ago,
plaintiff may encounter serious obstacles in proving that the assertion is false.
Defendant’s basis for the assertion may be speculative, but plaintiff may have
difficulty locating pertinent evidence on the issue. Nevertheless, plaintiff can
testify as to his innocence and introduce at least some corroborating evidence,
including perhaps the doctor’s report and its acceptance by the authorities.
Absent probative contrary evidence, a trier of fact could accept plaintiff ’s testi-
mony as credible and conclude, in the absence of further evidence by defen-
dant, that the defamatory allegation was false. More general assertions—for
example, that plaintiff has a history of affiliations with organized crime—may
be extraordinarily difficult to disprove even if they are untrue.
Also troublesome are cases in which factual assertions cannot be proved to
be true or false because evidence on the issue is absent. For example, in the
New York case Immuno AG v. Moor-Jankowski,7 a letter to the editor of a scien-
tific journal criticized Immuno’s plan to use chimpanzees in hepatitis research.
At issue was an allegation that such chimpanzees, released to the wild when
Immuno’s experiments concluded, could spread disease among the chimpanzee
population generally. In theory, the assertion was one of fact: either the released
animals would spread disease or they would not. But as a practical matter no
one could prove either the truth or the falsity of the proposition; probative
evidence was absent. Under these circumstances Immuno could not meet its
burden of proving falsity, and it lost.8 An alternative ground of decision, also
asserted by the New York court, was that in this kind of case the seemingly
factual assertion should be viewed as opinion.9 This conclusion is similar to the
one reached in the court of appeals decision in Ollman v. Evans, discussed in
Chapter 17, in which problems of proof were considered critical to the distinc-
tion between fact and opinion.10
In sum, requiring plaintiff to bear the burden of proving falsity may provide
a pragmatic means of separating assertions of fact from assertions of opinion, a
consequence consistent with the Supreme Court’s decision in Milkovich.11
By its terms, Hepps is limited to public issues and media defendants. For
reasons discussed in Chapter 14 in connection with private libels, the first
limitation is sound and the second is not. When public issues are discussed,
media and nonmedia defendants should be afforded the same measure of con-
stitutional protection.
In the end, the allocation of burden of truth or falsity is a procedural issue.
That issue will be scrutinized further in connection with procedural reforms
proposed hereafter (see particularly Chapter 25). For the moment, all that can
usefully be said is that the placement of the burden of proof does not, in and of
itself, pose a serious problem. It becomes a significant problem if the plaintiff
has the burden of proof and the defendant can shelter critical information be-
hind a reporter’s shield law.
THE GREATEST ANALYST WHO EVER LIVED 129
N I N E T E E N
THE GREATEST ANALYST WHO EVER LIVED
T H E R E Q U I R E M E N T T H AT A P L A I N T I F F prove falsity is related to substantial

truth, not exact truth. A defamatory statement is not false simply because it
deviates from the truth in insubstantial details. For example, in Rouch v. Enquirer
& News of Battle Creek,1 the newspaper stated that Rouch had been arrested and
charged with sexual assault on a babysitter and that he had been identified by
his children. In fact, Rouch had not been formally arraigned, but he had been
accused of the attack by the babysitter and he had been arrested. He had been
identified not by his own children but by the children of his ex-wife. The Michi-
gan court upheld the defense of truth. The term charge was sufficiently broad to
encompass both initial accusations and subsequent formal arraignments. The
error as to the children was a minor one. Even if the article had been written
with the corrections Rouch sought, the “gist or sting of the article” would have
been the same.2
The U.S. Supreme Court has embraced the principle that “substantial truth”
is a complete defense to a defamation action. Jeffrey Masson, a psychoanalyst,
had been projects director at the Sigmund Freud Archives in England. He was
discharged after expressing his disillusionment with Freudian psychology. Janet
Malcolm, an author, wrote an unflattering article about Dr. Masson, based on a
series of interviews with him conducted over a period of time; the article ap-
peared in New Yorker magazine. Dr. Masson sued in defamation, claiming
Malcolm had attributed to him six quoted comments that he had not made (or
that he had made in a different form). For undisclosed reasons, Dr. Masson was
conceded to be a public figure.3
130 O T H E R A S P E C T S O F D E FA M AT I O N A N D FA L S E LIGHT
In a 1991 opinion the Supreme Court recognized that a fabricated quota-

tion might injure a person’s reputation either because it constituted an admis-
sion of impropriety or because the manner of expression reflected adversely on
the speaker’s character.4 In this case the challenged quotations included Masson’s
description of himself as “the greatest analyst who ever lived”; his plans to use
the archives for “sex, women, fun”; and his statement that his colleagues at the
archives regarded him as an “intellectual gigolo.”5 The Court held that the record
raised triable issues of fact as to whether Malcolm had fabricated the quoted
remarks, whether she had done so with actual malice, and whether the quota-
tions—if altered—had conveyed a defamatory meaning.
But the Court was not prepared to rule that every misquotation, even if
deliberate, constituted a defamatory falsehood: “If an author alters a speaker’s
words but effects no material change in meaning, including any meaning con-
veyed by the manner or fact of expression, the speaker suffers no injury to
reputation.”6 The law of defamation “overlooks minor inaccuracies and con-
centrates upon substantial truth”; minor inaccuracies are tolerated as long as
“the substance, the gist, the sting of the libelous charge be justified.”7 A state-
ment is not considered false unless it would have a different effect on the mind
of the reader from that which the pleaded truth would have produced.8 In the
case at hand, an alleged alteration in Dr. Masson’s explanation as to why he had
changed his name was held to be immaterial because the words attributed to
Dr. Masson did not materially alter the meaning of his statement.9 On the other
allegedly fabricated quotations—including the ones previously described—the
case was remanded for trial on the outstanding issues. (Malcolm ultimately
prevailed; a jury found in her favor.10)
The Court in Masson distinguished two of its earlier decisions. In Time,
Inc. v. Pape,11 Time published an article summarizing a report of the U.S. Com-
mission on Civil Rights discussing incidents of police abuse. One of these was
a civil complaint charging that Pape, a police officer, had violated the civil
rights of Monroe in conducting an unlawful search and seizure at the Monroe
premises. Pape’s defamation suit was based on Time’s failure to indicate that
these allegations had yet to be established as true or false; Time reported the
allegations as if they had been the conclusions of the Commission on Civil
Rights. Pape was clearly a public official, and the Court ruled that the
commission’s report was “extravagantly ambiguous.”12 Time’s conclusion that
the commission had accepted the truth of Monroe’s allegations was “one of a
number of possible rational interpretations” of the commission’s report; the
choice of that interpretation, “though arguably a misconception, was not enough
to create a jury issue of ‘malice.’ ”13
THE GREATEST ANALYST WHO EVER LIVED 131
Similarly, in Bose Corp. v. Consumers Union (CU),14 a manufacturer of a

loudspeaker system sued for product disparagement when CU reported that in
using the Bose system, the sound of individual instruments “tended to wander
about the room.”15 The author of the underlying research report had found that
the sounds of instruments tended to wander along one wall rather than about
the room. The Supreme Court accepted without review the district court’s
conclusion that Bose was a public figure16 and ruled that the choice of language,
“though reflecting a misconception,” was a rational interpretation and did not
give rise to an inference of actual malice. Otherwise, “[A]ny individual using a
malapropism might be liable, simply because an intelligent speaker would have
to know that the term was inaccurate in context, even though he did not realize
his folly at the time.”17
The Court in Masson ruled that the “rational interpretation” test, derived
from Pape and Bose, was inapplicable to alterations in quoted language.18 The
earlier cases dealt not with the issue of substantial truth but with the question of
whether the language chosen, although possibly erroneous, was sufficient in
itself to support an inference of actual malice. Substantial truth and the ques-
tion of actual malice (or other fault) are different issues. The discrepancy in
Pape, for example, was clearly material—a report of an allegation of police
misconduct differs radically from a statement that such misconduct actually had
occurred. But the discrepancy in language, in light of the ambiguity of the
underlying report of the Commission on Civil Rights, raised no triable issue of
actual malice. In other words, the allegations in Pape (and in Bose as well) were
false, but they were not shown to have been uttered with the requisite degree of
fault. In Masson, by contrast, there was a triable issue as to actual malice, so the
issue of substantial truth—the materiality of any deviation—was a critical fac-
tor in determining whether the misquotations were “false.”
The concept of “substantial truth” is consistent with the general thesis of
New York Times Co. v. Sullivan. Public debate is facilitated if insubstantial errors
do not trigger liability in defamation. At the same time, no harm to reputation
occurs if the “sting” of the erroneous statement would not be altered by correc-
tion of minor mistakes.
T W E N T Y
FIVE SCIENTISTS WHO WERE PAID TO LIE
D R . G O R D O N E D WA R D S WA S A P R O F E S S O R of entomology. Dr. Thomas

Jukes was a professor of medical physics. Dr. Robert White-Stevens was a
professor of biology. These three and two other eminent scientists became em-
broiled in a public controversy about the impact on the environment of pesticides
such as DDT. Proponents of pesticides argued that their benefits in facilitating
enhanced agricultural production outweighed their detriments to the environ-
ment, which were said to be slight. On the latter point, some scientists cited
annual counts of birds, conducted by the Audubon Society, that showed in-
creased sightings of birds from year to year despite increased use of pesticides.
The society believed the increased sightings were attributable to better observa-
tions by bird-watchers and were not the result of increased numbers of birds.
Robert Arbib was editor of the society’s publication, American Birds. Incensed
by the scientists’ use of bird counts to defend DDT, he wrote in 1972 that
whenever members hear a scientist deny that pesticides are harmful, “you are in
the presence of someone who is being paid to lie, or parroting something he
knows little about.”1 Arbib’s gibe, although defamatory in content, was not
actionable because it was not “of and concerning” any identifiable scientists.
The New York Times sought to provide a more complete picture. John
Devlin, a Times reporter, called Arbib to obtain the names of the scientists he
was attacking. In the face of Devlin’s persistence, Arbib promised to furnish
names. Arbib turned to Roland Clement, a society vice president, who told
Arbib he could not name any specific person who was a paid liar. Clement did,
F I V E S C I E N T I S T S W H O W E R E PA I D T O L I E 133
however, identify five scientists who Clement thought had most persistently
“misused” bird counts—including Doctors Edwards, Jukes, and White-Stevens.
Arbib then gave Devlin those names.
The substance of the Arbib-Devlin conversation was in dispute. Arbib claimed
he had told Devlin that the five scientists were misusers but not necessarily paid
liars. Devlin claimed Arbib had identified the five as paid liars. Devlin sought
responses from the five; he reached three, who vigorously denied the charges.
Devlin then wrote a story saying that although the article in American Birds did
not identify the persons charged, Arbib had said in an interview that they in-
cluded the five named scientists. Although Devlin reported the strong denials of
the three scientists he had reached and although he himself did not take a stand
on whether the accusations were true or false, the defamation was now com-
plete: the paid liars had been identified.2
Edwards, Jukes, and White-Stevens brought a defamation action against
Arbib, Clement, the National Audubon Society, and the New York Times. The
Audubon Society and its officials were exonerated for reasons not entirely clear
from the 1977 opinion of the Court of Appeals for the Second Circuit. The
Times also could have been exonerated, under a conventional application of
New York Times Co. v. Sullivan and Gertz, if Devlin had believed Arbib’s allega-
tions were true; plaintiff scientists were public figures prominent in espousing
one side of a public controversy (see Chapters 7 and 9). But the court of
appeals went further and held that the New York Times should prevail even if
Devlin did not believe the charges of the Audubon Society were true, formulat-
ing a privilege of “neutral reportage”: “[W]hen a responsible, prominent orga-
nization like the National Audubon Society makes serious charges against a
public figure, the First Amendment protects the accurate and disinterested
reporting of those charges, regardless of the reporter’s private views concern-
ing their validity. . . . What is newsworthy about such allegations is that they
were made.”3
The court ruled that the press was privileged to report newsworthy state-
ments because of the public’s interest “in being fully informed about controver-
sies that often rage around sensitive issues,” as long as the press reported the
charges fairly and accurately and did not itself espouse the accusations. In this
case the Times article “was the exemplar of fair and dispassionate reporting of
an unfortunate but newsworthy contretemps.”4 The privilege accorded by Edwards
is not available if the press goes beyond reporting the defamatory charges and
concurs in them.5
The privilege of neutral reportage has not been endorsed by the Supreme
Court and has been the subject of conflicting rulings in other courts.6 In part,
the problem is one of boundaries. What is a “responsible, prominent organiza-

tion”?7 What are “serious charges”?8 Why should the privilege be limited to
public figures and not encompass private figures involved in public controver-
sies?9 But a deeper problem stems from the premise of Edwards that the press
was not required “to suppress newsworthy statements merely because it has
serious doubts regarding their truth.”10 Yet that is precisely the obligation of the
press under New York Times Co. v. Sullivan and Gertz. To publish in the face of
serious doubts is to publish in reckless disregard of the truth and constitutes
actual malice. The constitutional privilege essential to full protection of utter-
ances in furtherance of First Amendment expressive values does not require
protection for the propagation of defamatory utterances the publisher knows
are false or seriously doubts are true.
The facts of Edwards shed light on the issue. The National Audubon Soci-
ety could have named the “paid liars” it had in mind. In fact, it had no one in
mind, as the dialogue between Arbib and Clement made clear. But its reckless
accusations were protected as long as the objects of the attack were not identi-
fied. For this reason the Times—if it chose to do so—could have republished
the Audubon Society’s accusations without fear of liability regardless of whether
it agreed with them. But once the Times went further and named names, it
engaged in actionable defamation and had the responsibility of ensuring an
appropriate basis for its report, in this case a good faith belief in the truthful-
ness of the charges made. Under the ruling in Edwards, the named scientists
were defamed with impunity even though no one—not Arbib or Clement or the
Audubon Society or Devlin or the New York Times—offered any basis for the
assertion or belief that the scientists named were paid liars.
T H E T O W N O F S H A N N O C K , R H O D E I S L A N D , had a population of 300. Its

residents were apprehensive about the property acquisitions of George Martin,
a local real estate developer. Wilson Publishing reported on the residents’ con-
cerns and commented:
Some residents stretch available facts when they imagine Mr. Martin is
connected with the 1974 rash of fires in the village (the abandoned depot,
the back of the Shannock Spa, and even that old barn he loved). Local fire
officials feel that certain local kids did it for kicks. The same imaginations note
that the fire at the old Shannock mill before he bought it made it cheaper
(but less valuable), or that the fire there since he bought it might have been
profitable (though derelict buildings, such as it was, are customarily
uninsurable).11
Martin sued for defamation, and Wilson Publishing relied on Edwards: it

had accurately reported on rumors current in the community. The Rhode Is-
land Supreme Court ruled that Martin, as a prominent local realtor, was a
public figure; but it declined to accept Edwards as a defense:
The spreading of rumors does not give the person defamed by them the
opportunity to rebut the underlying allegations of the rumor. To attempt to
defend against a rumor is not unlike attempting to joust with a cloud.
Publication of a rumor further fuels the continued repetition and does so in
an especially egregious way by enshrining it in print. Thus . . . the opportu-
nity for abuse of the reporting of the existence of a defamatory rumor is great,
and . . . courts . . . have denied the right to report the existence of rumors
when the underlying accusation of the rumor is believed to be false.12
Edwards was distinguished on the ground that the charges in that case
originated with a prominent responsible organization. But the court further
noted that “this rationale is redundant to the principles enunciated in New York
Times,” which in any case “would require the trier of fact to consider the cred-
ibility or responsibility of the source.” The court questioned whether an addi-
tional layer of protection is required, but it declined to rule definitively on other
applications of Edwards.13
A N O T H E R A S P E C T O F E D WA R D S I S P R E S E N T E D in an Ohio case. Mary April,

a part-time cook in the Sheriff ’s Department, had been fired. Thereafter, Sher-
iff Dunlap settled April’s age discrimination suit for $2,500. When the county
commissioners questioned Dunlap about the settlement, he stated that April
had been fired because she had been stealing from the department. The Reflec-
tor-Herald ran three articles on the episode, repeating Dunlap’s charge against
April. April sued Dunlap, the Reflector-Herald, and several others for defama-
tion. The others settled out of court; the newspaper relied on the privilege of
neutral reportage enunciated in Edwards. The Ohio court agreed with the news-
paper.14
The Reflector-Herald “accurately conveyed the charges made against April
by Sheriff Dunlap.” The statement was newsworthy because it was made in
connection with a controversy about the expenditure of public funds, without
the permission or knowledge of the county commissioners, to settle April’s age
discrimination case. The court saw “no legitimate difference between the press’s
accurate reporting of accusations made against a private figure and those made
against a public figure” when the accusations were “newsworthy and concern[ed]
a matter of public interest.”15
The decision in April is right, but not for the reasons given. The Reflector-
Herald should have been protected not because it was engaged in neutral report-
age but because it was reporting on a legislative inquiry into the conduct of a
public official (Sheriff Dunlap). Edwards was not needed to reach a sound deci-
sion. Similarly, when private persons complain to government officials about
alleged wrongdoing, the press must be allowed to report the allegations as allega-
tions without vouching for their truth.16 Otherwise the public is precluded from
monitoring the responsiveness of government officials to complaints asserted
by private persons. Cases of this character are distinguishable from cases such
as Edwards and Martin where derogatory allegations had been made to the
public at large without implicating any official conduct, past or future.
N E U T R A L R E P O R TA G E I S A N A L O G O U S to fair and accurate report.17 In both

cases the press reports the assertions of others without assuming any responsi-
bility for the truth of the underlying allegations. But in the case of fair and
accurate report, the press is reporting on the actions or proceedings of govern-
ment, a subject of special concern under the First Amendment. In the case of
prominent private organizations such as the National Audubon Society, the
organization itself can choose to inform the public as fully as it wishes and to
disseminate the message as far as its resources permit. Other private organiza-
tions can choose to repeat the message if they wish, again with as much or as
little detail as they think appropriate. But some minimal responsibility is essen-
tial in each instance, if only to preclude the total abdication of responsibility
condoned in Edwards.
If any person elects to utter an actionable defamation, he or she should not
be able to achieve exoneration simply by pointing the finger at someone else.
Each publication of a defamation inflicts a separable harm, either by reaching a
different audience or by reinforcing the negative impression in the minds of the
same audience. Each publisher should have a responsibility, not delegable to
others, to satisfy itself as to the truth of the defamation with the degree of care
required by the nature of the case—a good faith belief in the case of public
officials and public figures and reasonable care in the case of private figures
involved in public controversies.
The privilege of neutral reportage grows out of a more general dissatisfaction
with the common law rule that imposes liability on repeaters of defamations as well
as on the originators of defamations. Since the impact of defamatory utterances
is cumulative, the common law rule is well-grounded. Given the protections of
the actual malice standard of New York Times Co. v. Sullivan, the privilege of
neutral reportage is perverse. The public need not be enlightened by the propa-
gation of defamatory assertions when the party repeating the assertions either
knows they are false or knows he has no basis for judging their truth or falsity
(reckless disregard).
Further, any effort to shape a more effective remedial structure to deal with
defamation—one focusing on retractions and corrections and determinations
as to truth or falsity, as proposed in Chapters 24 and 25—requires that the
victim of a slander be able to reach, and to obtain redress from, all who have
participated in the propagation of the actionable falsehood.18
T W E N T Y - O N E
THE AIRMAN WHO ALMOST FELL TO EARTH
H E N R Y D E M P S E Y , A P I L O T for more than twenty years, was flying his small

craft over the Atlantic Ocean. Leaving his copilot at the controls, he went to
the rear of the plane to check on a rattle in the passenger door. The door burst
open, and Dempsey was sucked out of the plane. He managed to grab a rail on
the passenger stairway and hold on. He dangled in the air at 2,500 feet above
the ocean until his copilot brought the plane back to shore and made a safe
landing. Dempsey walked away from the incident with no more than a few
scratches. News America, publisher of Star magazine, published a firsthand
account of the incident “by Henry Dempsey,” including Dempsey’s purported
reactions during the episode and conveying in quotes Dempsey’s supposed
innermost thoughts while hanging from the plane. The article was accurate as
to the incident but a complete fabrication as regards Dempsey’s participation
in writing the article and in telling his thoughts and reactions.1
On Dempsey’s action for false light privacy, the U.S. district court ruled
that it was a question for the jury whether the fabricated interview “would be
highly offensive to a reasonable person.” (News America conceded deliberate
fabrication for purposes of this ruling.) The court traced the false light action
to an 1816 English decision in favor of Lord Byron, enjoining a publisher
from selling poems falsely ascribed to Byron. It observed that an individual’s
privacy is not invaded “when unimportant false statements are made”; there
must be “a major misrepresentation of his character, history, activities or
beliefs.” The court cited opinions granting relief in cases involving a false
quotation and a false signature on a letter. It found that a jury reasonably
THE AIRMAN WHO ALMOST FELL TO EARTH 139
could find the fabricated interview highly offensive under the pertinent legal
standard.2
T H E U . S . S U P R E M E C O U R T H A S C O N S I D E R E D the relation between false

light privacy and the First Amendment on two occasions.
In 1952 members of the Hill family of Whitemarsh, Pennsylvania, were
held captive in their home for nineteen hours by three escaped convicts. The
convicts treated the family courteously, without molestation or violence, and
released them unharmed. The convicts were thereafter apprehended in a widely
publicized encounter with the police in which two of the convicts were killed.
The Hill family moved to another state and discouraged all publicity about its
role in the incident. Inspired by the Hill family experience and by other events
involving hostages, Joseph Hayes wrote a novel, The Desperate Hours, in 1953.
The story portrayed members of a captive family who had been beaten or
subjected to verbal sexual insult. The novel was made into a play (and later into
a movie). Neither Hayes nor any of his works of fiction was challenged by the
Hills.
Life magazine published an article in 1955 about the play, including pic-
tures of violent encounters between the convicts and their captives. Pictures of
the actors were taken in the former Hill residence, and the Life story depicted
the play as a reenactment of the Hills’ experience. The Hills sued for violation of
New York’s privacy statute. The New York Court of Appeals ruled that although
truthful accounts of the Hills’ experience were not protected under the New
York statute, fictionalized accounts were subject to challenge. The Life story
violated the Hills’ right to privacy because it was a fictionalized and materially
false depiction of their experience. The Hills recovered $30,000 in compensa-
tory damages.3
In a 1967 ruling the U.S. Supreme Court reversed. It held that the claim
was governed by the actual malice standard of New York Times Co. v. Sullivan
and that the state judgment could not stand because it was not premised on a
finding of deliberate falsification or reckless disregard for the truth. From the
evidence a jury might have found that the errors were the product of negligence
or innocent mistake. The Court ruled that actual malice was required before a
court could act to redress false reports of matters of public interest and that the
subject of the Life article, “the opening of a new play linked to the actual inci-
dent, [was] a matter of public interest.”4
I N 1967 M E LV I N C A N T R E L L WA S K I L L E D when the Silver Bridge across the

Ohio River collapsed. Forty-three other people also died. In covering the story
for the Cleveland Plain Dealer, Joseph Eszterhas wrote about Cantrell’s funeral
and the impact of his death on his family. Five months later Eszterhas wrote a
follow-up article on the Cantrell family, stressing the family’s abject poverty, the
children’s old and ill-fitting clothes, and the deteriorating condition of their
home. The article contained many falsehoods, including misrepresentations in
descriptions of the poverty in which the Cantrells were living and of the dirty
and dilapidated condition of their home. Although Mrs. Cantrell was not at
home at any time during Eszterhas’s visit, the article stated: “Margaret Cantrell
will talk neither about what happened nor about how they are doing. She wears
the same mask of non-expression she wore at the funeral. She is a proud woman.
Her world has changed. She says that after it happened, the people in town
offered to help them out with money and they refused to take it.”5 Mrs. Cantrell
and one of her children sued on a theory of false light privacy, claiming the story
made them objects of pity and ridicule and caused them to suffer outrage,
mental distress, shame, and humiliation.6
The Cantrells recovered a judgment of $60,000 in compensatory damages.
This time, in a 1974 opinion, the Supreme Court affirmed. Unlike Hill, the
jury in this case had found that the Plain Dealer and its reporter had acted with
actual malice: the false statements in the article had been made with knowledge
of their falsity or in reckless disregard of the truth, a finding amply supported
by the record.7
F A L S E L I G H T P R I VA C Y is a controversial cause of action. Some have argued that

it serves no useful purpose and should be disallowed.8 But the false light theory
is important for two reasons—one pragmatic, the other normative.
Viewed pragmatically, the action for false light privacy coincides with the
action for defamation in all but one important respect: a defamatory falsehood
must injure the plaintiff ’s reputation; a falsehood shedding false light need not
impair reputation. It is enough that the falsehood is offensive to the plaintiff
and would be regarded as highly offensive by a reasonable person. The problem
with an exclusive focus on reputation, as in defamation, is that the victim of a
falsehood may be viewed differently by different people. For example, in Ben-
Oliel v. Press Publishing Co.,9 Florence Ben-Oliel was an expert on Palestinian
art and customs. Defendant published an article on that subject and falsely
ascribed authorship to Ben-Oliel. The article may have been viewed favorably
by almost all of the newspaper’s readers, but it contained errors that would lead
other experts on Palestinian art and customs to believe Ben-Oliel was incompe-
tent. Ben-Oliel recovered in defamation on the theory that her reputation had
been impaired among the very small number of experts who could have de-
tected the errors in the article.10
By contrast, in Connelly v. McKay,11 the defendant stated that plaintiff, who
owned a service station and truck stop, had reported to the Interstate Com-
merce Commission (ICC) the names of truckers who had violated ICC rules
limiting the number of consecutive hours truckers may work. Plaintiff ’s claim
in defamation was rejected even though the statement had impaired his reputa-
tion among truck drivers, who were plaintiff ’s major source of patronage.12
Ben-Oliel would have supported a contrary conclusion. But the New York court
was reluctant to place a judicial seal of approval on plaintiff ’s claim that it was
defamatory to depict him as a law-abiding citizen.13
Similar problems of institutional embarrassment have been encountered.
Is it defamatory to say that a white man is black? That a heterosexual is homo-
sexual? A court could follow Ben-Oliel and rule that, at least among some per-
sons, a false allegation of black ethnicity or of homosexuality will reduce the
esteem in which plaintiff is held and is therefore defamatory.14 The same ap-
proach might be followed if a black man were said to be white or a homosexual
were said to be heterosexual. But from an institutional perspective it may be
preferable to adopt the approach of false light privacy, saying it is unnecessary
to determine whether white is better than black or straight is better than gay. It
is enough that an important aspect of plaintiff ’s character has been falsified in a
manner most plaintiffs would find highly offensive.
F R O M A N O R M AT I V E P E R S P E C T I V E , the issue concerns the autonomy of the

victim. Do persons have a right to be represented as they really are? Or can
their lives and personal qualities be manipulated at the whim of a publisher as
long as the result is not defamatory? Returning to Ben-Oliel, a theory of defama-
tion requires that the article have errors that damage the plaintiff ’s reputation
among knowledgeable experts. But suppose the article had been flawless? Must
Ben-Oliel stand by while another puts words on paper and falsely attributes
them to her? What of a person who declines to give an interview or refuses to
sign a petition? Can the defendant print a fabricated interview or attach plaintiff’s
name to a petition despite his opposition? Such practices have been held to be
actionable on a theory of false light privacy despite the absence of any impair-
ment of plaintiff ’s reputation.15 Similarly, a fictitious biography of Warren Spahn,
the famous baseball player, was held to be actionable even though the work’s
fictitious elements showed Spahn in a favorable light.16 Other examples, not so

flattering, occur with some frequency.
N E L L I E M I T C H E L L WA S A N I N E T Y - S E V E N - Y E A R - O L D W O M A N residing in Moun-
tain Home, Arkansas. Having operated a newsstand and delivered newspapers
in Mountain Home for almost fifty years, she was a well-recognized figure in
her community and something of a local legend. In 1980, major newspapers
ran human interest stories about her, and she was interviewed on television talk
shows.
Globe International Publishing marketed the Sun, a supermarket tabloid.
In an October 1990 issue, the Sun ran a story under the headline “Pregnancy
Forces Granny to Quit Work at Age 101.” The front page featured only the
headline and a picture of Nellie Mitchell. The story itself, on page eleven of the
tabloid, described an Australian woman named “Audrey Wiles” who had quit
her paper route at age 101 because she had become pregnant as a result of an
extramarital affair with a millionaire client on her route. Another picture of
Nellie Mitchell accompanied the story on page eleven. The headline and the
story were fiction, and the Sun’s use of Nellie’s photographs was unauthorized.
The edition sold out in the region where Mitchell lived as word spread that
“the paper lady” was featured in the tabloid. The jury found for the Sun on the
defamation count and for Mitchell on the false light privacy claim, awarding her
$650,000 in compensatory damages and $850,000 in punitive damages.17 The
distinction made by the jury between defamation and false light privacy was not
articulated. A plausible explanation is that Mitchell was not defamed because
the defamatory matter was on page eleven, and readers reaching that page would
quickly discern that the story had nothing to do with her. By contrast, those
who saw only the front page, viewing the Sun in passing on the checkout line,
would miss the defamatory story but see the pregnancy mentioned in the head-
line linked to a picture of Nellie Mitchell.
On the claim premised on false light privacy, the Court of Appeals for the
Eighth Circuit sustained the jury’s finding of liability and its award of punitive
damages. It ruled that the compensatory damages awarded were excessive. (Com-
pensatory damages were subsequently reduced to $150,000.18) The court of
appeals found that the Sun had acted with actual malice—purposeful avoidance
of the truth—in publishing a falsehood that “would be highly offensive to a
reasonable person [and] was in fact highly offensive to Mitchell.”19
A N O D D I T Y O F FA L S E L I G H T P R I VA C Y C A S E S is the requirement of “publicity.”

To be actionable, the statement casting false light on the plaintiff must be com-
municated “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.”20 No
explanation has been given as to the purpose to be served by this limitation, and
none is apparent. To be sure, a limited disclosure may inflict limited damages.
But the same is true of defamation, yet a defamatory utterance is actionable
upon disclosure to any third party. The harmful potential of false light state-
ments may be less apparent than that of defamatory falsehoods. But that poten-
tial is unrelated to the scope of disclosure and can be guarded against more
effectively by close attention to the element of fault. In this context the requisite
fault would turn on the publisher’s belief as to the truthfulness of the assertion,
as well as his knowledge of the probable offensiveness of the assertion if it
turned out to be false.21 Where the media make the disclosure in issue, the
“publicity” requirement is invariably satisfied. To date, very few nonmedia cases
have posed issues of false light privacy.
U N D E R H I L L A N D C A N T R E L L , false light recoveries are compatible with the

First Amendment as long as the requisite fault is shown. Actual malice supports
liability in a false light case; that much is clear. But is a showing of actual malice
necessary in all cases? To place that issue in perspective, a brief recapitulation of
the defamation precedents is required.
In New York Times Co. v. Sullivan,22 decided in 1964, the Supreme Court
ruled that a public official must show actual malice to recover in defamation—
that is, knowing falsity or reckless disregard for the truth. In 1967 the actual
malice requirement was extended to public figures—persons prominent in so-
ciety but not public officers.23
In 1971, in Rosenbloom v. Metromedia, Inc.,24 the Supreme Court extended
the actual malice requirement to any person discussed in reporting on a matter
of public interest. But Rosenbloom was repudiated three years later in Gertz v.
Robert Welch, Inc.25 The Supreme Court there restricted the actual malice re-
quirement to public officials and public figures, holding that private persons
defamed in the course of discussing a public issue could recover compensatory
damages for actual injuries upon a showing of fault (subsequently equated to
negligence).
Time, Inc. v. Hill 26 was decided in 1966, prior to both Rosenbloom and
Gertz. In structure, the reasoning of Hill is indistinguishable from that of
Rosenbloom. The actual malice requirement was invoked not because the Hills
were public personages but because the opening of the play, linked to an actual
incident, was “a matter of public interest.” With Rosenbloom repudiated, it is
difficult to defend Hill on the reasoning of the opinion itself. In Cantrell, de-
cided shortly after Gertz, the Supreme Court cited Gertz but left open the
question of whether the negligence standard of Gertz would apply in a false light
case.27
To be sure, defamation typically poses a more serious risk of injury than
false light privacy, and defamatory utterances may be more easily identifiable by
the publisher. But the underlying theory of Gertz—the protection of private
persons from emotional and other distress—applies to the plaintiffs in Hill and
Cantrell. The Hills and the Cantrells need not have been exposed to the false
depictions at issue in those cases to advance any important First Amendment
expressive interest. Invasions of privacy by the shedding of false light subject
victims to public embarrassment and possible humiliation, harms that are avoid-
able if the publisher takes appropriate precautions. The extent of precautions
can be calibrated to take account of the character of the representation and the
probability that it would prove highly offensive if false. The Supreme Court has
yet to speak on the issue, and the lower courts are divided on whether the
negligence standard of Gertz applies to false light cases involving private persons.28
In any event, negligence is not the appropriate standard in all cases. If a
public figure seeks redress under a theory of false light privacy for an allegedly
false statement pertinent to her public position, she would have to show actual
malice—deliberate falsehood or reckless disregard for the truth—just as surely
as if she were suing in defamation. Consider, for example, revelations about
the Jewish family origins of former Secretary of State Madeleine Albright.
Suppose the press had it wrong? If in fact she were not Jewish, a court might be
reluctant to find that the falsehood was defamatory—to rule that a false attribu-
tion of Jewish ethnicity exposed a prominent public personality to hatred,
contempt, or ridicule in the United States. Perhaps a false allegation that Albright
had failed to acknowledge her Jewish identity would be a better candidate for
an action in defamation. That aspect of her background troubled many at the
time of her appointment. But whether Albright sues in defamation or in false
light privacy, the First Amendment interest in public scrutiny of public offi-
cials is the same. And that interest is protected by the requirement of actual
malice.
Similarly, the privilege of fair and accurate report of government proceed-
ings, almost certainly mandated by the First Amendment (see Chapters 11 and
20), cannot be evaded by bringing an action for false light privacy.29 State-based
common law privileges also should be applicable to the extent that their under-
lying justifications—such as facilitating communications among persons with a

common interest (as discussed in Chapter 14)—are applicable to false light as
well as defamation cases.30
At the other extreme, some false light cases may stand on a plane no higher
than actionable gossipmongering, such as the false allegations of adultery in
Brewer and of prostitution in James.31 As pointed out in Chapters 8 and 14,
these decisions are unsound. Allegations about the private affairs of private
persons should be excluded from the domain of constitutional privilege and
returned to the more rigorous common law regime: imposing strict liability,
allowing presumptive damages, and imposing the burden of proving truth on
the publicist. If that position is accepted, then it applies to the attribution of
pregnancy to Nellie Mitchell in a fictitious story about an imaginary “Audrey
Wiles.” The story was not related to an issue of public concern. No undue
burden is imposed on free expression if those choosing to publish such stories
are held strictly accountable for inappropriately implicating real persons with
real feelings. Similarly, in Dempsey the entire structure of the article about the
dangling airman—from authorship to Dempsey’s quoted reactions—was a sham.
It was unrelated to any issue of public concern.
O N E F U R T H E R P O I N T O N H I L L . Some commentators have argued that the

decision was sound in denying recovery for reasons other than those upon
which the Supreme Court relied. They contend that even if the Life article had
been truthful—an earlier version had referred to the play as a “somewhat fic-
tionalized” account of the Hills’ experience32—the harm to the Hills would have
been the same. The gravamen of their injury, they say, was a reopening of old
wounds rather than any falsity in Life’s depictions of the Hills’ experience.33 But
the falsifications in Life were not trivial, and to describe them as “somewhat
fictionalized” hardly does them justice: “The pictures [in Life] included an
enactment of the son being ‘roughed up’ by one of the convicts, entitled ‘brutish
convict,’ a picture of the daughter biting the hand of a convict to make him
drop a gun, entitled ‘daring daughter,’ and one of the father throwing his gun
through the door after a ‘brave try’ to save his family is foiled.”34
Nothing approximating any of these pictures had happened to the Hills.
The son had not been roughed up, the daughter had not bitten anyone, and the
father had never had a gun with which to make a brave try. The Supreme Court
correctly remanded the case to enable the Hills to renew their claim if they
could prove knowing falsity or reckless disregard for the truth. But even under
Gertz the Hills could not recover except upon a showing of injury, emotional or
otherwise, stemming from highly offensive falsifications. If they could not show
such a nexus, they could not recover.
The problem, then, is that a jury might not have distinguished between the
two elements of the Hills’ claim: the reopening of old wounds and the embar-
rassing falsifications. In Cantrell the jury might have concluded that the family’s
plight should not have been exposed at a time of tragedy even if the report had
been wholly accurate in depicting the shabby conditions in which they lived.
Excessive recoveries are a distinct possibility. Do they pose a threat to First
Amendment expressive values?
To gain a better perspective, it is important to ask why the press is privi-
leged to report on the private affairs of private persons when such revelations
may be hurtful to them for any number of reasons. In fact, recoveries are
sometimes permitted for public disclosures of embarrassing private facts even
if the disclosures are truthful (see Chapters 28 and 29). But such recoveries are
rare. The First Amendment interest in the ascertainment of truth takes prece-
dence over private embarrassment in all but the most extreme circumstances.
The courts quite properly doubt their own capacities to distinguish the news-
worthy and informative from disclosures that might warrant less hospitable
treatment. So virtually all truthful disclosures are privileged.
But the privilege is, and should be, defeasible. Once the redeeming quality
of truth is shown to be absent, the whole justification crumbles. If the embar-
rassing or hurtful disclosures are shown to be false in a material respect, suffi-
ciently so as to be highly offensive to a reasonable person, the privilege dissolves
with its justification. Solicitude for the wayward publisher is unwarranted. This
is clear when the falsification is deliberate, although less clear when the falsifica-
tion is negligent. As we have seen in Chapter 13, no principle of substantive law
satisfactorily resolves the problem of negligent publication. The solution is es-
sentially procedural, to be developed in Chapters 23–25.
In sum, false light privacy serves interests distinct from those protected by
the law of defamation. But since liability in this case turns upon falsity, false
light privacy is subject to the same First Amendment limitations as apply to
defamation. Moreover, any reform applicable to the law of defamation is likely
to apply with equal force to the doctrine of false light privacy.
P A R T F O U R
PROCEDURAL ISSUES AND

THE PATH TO REFORM
T W E N T Y - T W O
ACTUAL MALICE AT ISSUE
F O R A P U B L I C O F F I C I A L O R A P U B L I C F I G U R E to recover in defamation, he
must prove that the defendant published a statement, both false and defama-
tory, of and concerning the plaintiff. But the plaintiff also must prove actual
malice on the publisher’s part. In a series of opinions, the Supreme Court has
provided guidance on the onerous, although not impossible, burden borne by
the public plaintiff in a defamation case. Rulings necessarily turn on the facts of
particular cases, some quite detailed. But the Court’s opinions provide some
sense of what will suffice and what will not.
In New York Times Co. v. Sullivan,1 discussed in Chapter 2, the Supreme
Court ruled that a court must independently examine the whole record; liability
cannot be imposed absent proof of actual malice of convincing clarity.2 In the
case at hand, a Times official had testified that he had thought the advertisement
was substantially correct. That “opinion was at least a reasonable one, and there
was no evidence to impeach the witness’ good faith in holding it.”3 The refusal
of the Times to issue a retraction on demand was not evidence of actual malice
because the refusal was not final; the Times had asked for an explanation as to
how the advertisement could be taken to refer to Sullivan—a request Sullivan
had chosen to ignore.4
Finally, the Court discounted evidence that the Times had published the
advertisement without checking its accuracy in the newspaper’s own files. The
presence of the conflicting stories would “have to be brought home to the
persons in the Times’ organization having the responsibility for the publication
of the advertisement.” Those persons had testified that they had relied on their
150 P R O C E D U R A L I S S U E S A N D T H E PAT H T O R E F O R M
knowledge of the good reputations of many of the signatories and on the affir-
mation of the person submitting the ad—known by them to be a responsible
individual—that the use of those names had been authorized. The persons han-
dling the ad had testified that they had seen nothing in it that would constitute
an attack of a personal character—a reasonable view of the ad.5
The evidence against the New York Times showed “at most a finding of
negligence in failing to discover the misstatements” and was “constitutionally
insufficient to show the recklessness that is required for a finding of actual
malice.”6
I N C U R T I S P U B L I S H I N G C O . V . B U T T S , 7 discussed in Chapter 8, the Satur-

day Evening Post carried an article accusing Wally Butts, athletic director at the
University of Georgia, of “fixing” a football game with the University of Ala-
bama by giving the Alabama coach advance information on Georgia’s plays and
game strategy. The story had been based on an affidavit by George Burnett, an
Atlanta insurance salesman, who had accidentally overheard a telephone con-
versation between Butts and the Alabama coach. A jury had found that the story
was false, and Butts had recovered a judgment for $460,000. As discussed in
Chapter 8, two concurring Supreme Court opinions held that the evidence was
sufficient to support a finding of fault on the part of the Saturday Evening Post.
Although the two opinions applied somewhat different legal criteria, they relied
on essentially the same facts:
The Saturday Evening Post knew that Burnett [who had sold his story to the Post]
had been placed on probation in connection with bad check charges, but
proceeded to publish the story on the basis of his affidavit without substantial
independent support. Burnett’s notes were not even viewed by any of the
magazine’s personnel prior to publication. John Carmichael who was supposed to
have been with Burnett when the phone call was overheard was not interviewed.
No attempt was made to screen the films of the game to see if Burnett’s informa-
tion was accurate, and no attempt was made to find out whether Alabama had
adjusted its plans after the alleged divulgence of information.
The Post writer who was assigned to the story was not a football expert and no
attempt was made to check the story with someone knowledgeable in the sport. . . .
The Saturday Evening Post was anxious to change its image by instituting a policy
of “sophisticated muckraking,” and the pressure to produce a successful exposé
might have induced a stretching of standards.8
By contrast, in the companion case of Associated Press v. Walker,9 discussed

in Chapter 7, the Supreme Court ruled in favor of the publisher. The story that
General Walker had led a riot at the University of Mississippi had been based
A C T U A L M A L I C E AT I S S U E 151
on the dispatch of Van Savell, an AP correspondent who had been present

during the events described and had reported them almost immediately to the
AP office in Atlanta. A minor discrepancy between the initial oral report and a
later written dispatch was not material to the gist of the story: “No other showing
of improper preparation was attempted, nor was there any evidence of personal
prejudice or incompetency on the part of Savell or the Associated Press.”10
Proof of actual malice or of any other degree of fault was wholly absent.
P H I L A. S T . A M A N T WA S A C A N D I D AT E F O R P U B L I C O F F I C E in Louisiana in
1962. Henry Thompson was then the deputy sheriff. In a televised speech, St.
Amant quoted an affidavit of J. D. Albin, a member of a Teamsters Union local,
accusing Thompson of accepting bribes from a corrupt union official and of
obstructing justice to protect that official. Thompson sued for defamation and
recovered $5,000 in damages. The Louisiana courts found evidence of actual
malice based on the following facts: St. Amant had no personal knowledge of
Thompson’s activities; he had relied solely on Albin’s affidavit despite the ab-
sence of any evidence regarding its veracity. St. Amant had failed to verify the
information with those in the union office who might have known the facts, he
had not considered whether the statements had defamed Thompson, and St.
Amant had mistakenly believed he was not legally responsible for the broadcast
because he had been merely quoting Albin’s words.11
In a 1968 opinion the Supreme Court reversed. It assumed that the affida-
vit was false but cited prior opinions requiring that the publisher be “aware of
the likelihood that he was circulating false information” (New York Times), that
the publication be made with a “high degree of awareness of . . . probable
falsity” (Garrison), or that the publication occurred “despite the publisher’s aware-
ness of probable falsity” (Curtis Publishing). Reckless conduct is not measured
by whether a reasonably prudent man would have published or would have
investigated before publishing. There must be proof that the publisher “in fact
entertained serious doubts as to the truth of his publication. Publishing with
such doubts shows reckless disregard for truth or falsity and demonstrates ac-
tual malice.”12
In this case no evidence indicated an awareness by St. Amant of the prob-
able falsity of Albin’s statement about Thompson: “Failure to investigate does
not in itself establish bad faith.” As to Albin’s reliability, no evidence demon-
strated a low community assessment of Albin’s trustworthiness or unsatisfactory
experience with him by St. Amant.13 Other evidence of record tended to cor-
roborate Albin’s affidavit. But the Supreme Court cautioned:
The defendant in a defamation action cannot [automatically prevail] by testifying

that he published with a belief that the statements were true. The finder of fact
must determine whether the publication was indeed made in good faith. Profes-
sions of good faith will be unlikely to prove persuasive, for example, where a story
is fabricated by the defendant, is the product of his imagination, or is based
wholly on an unverified anonymous telephone call. Nor will they be likely to
prevail when the publisher’s allegations are so inherently improbable that only a
reckless man would have put them in circulation. Likewise, recklessness may be
found where there are obvious reasons to doubt the veracity of the informant or
the accuracy of his reports.14
None of these factors had been present in the instant case. Thompson’s
judgment against St. Amant was set aside for failure to prove reckless disregard
of the truth.
A N T H O N Y H E R B E R T WA S A N A R M Y O F F I C E R who had served in Vietnam and

had received widespread media attention in 1969–1970 when he accused his
superior officers of covering up reports of atrocities and other war crimes. In
1973, CBS on its program 60 Minutes broadcast a segment on Herbert and his
accusations. The story was produced and edited by Barry Lando and narrated
by Mike Wallace. Herbert sued CBS, Lando, and Wallace for defamation, con-
tending that the program falsely and maliciously portrayed him as a liar and a
person who had leveled the war-crimes charges to explain his relief from com-
mand. Herbert conceded that he was a public figure, and, in pretrial discovery,
he sought evidence that the defendants had acted with reckless disregard for the
truth. He propounded a series of questions to Lando, which Lando refused to
answer on the ground that the First Amendment precluded inquiry into the
state of mind of those who edit, produce, or publish and into the editorial
process. The nature of Herbert’s inquiries was summarized in these terms:
1. Lando’s conclusions during his research and investigations regarding people or
leads to be pursued, or not to be pursued, in connection with the “60 Minutes”
segment; . . .
2. Lando’s conclusions about facts imparted by interviewees and his state of mind
with respect to the veracity of persons interviewed;
3. The basis for conclusions where Lando testified that he did reach a conclusion
concerning the veracity of persons, information or events;
4. Conversations between Lando and Wallace about matters to be included or

excluded from the broadcast publication; and
5. Lando’s intentions as manifested by his decision to include or exclude certain

material.15
Writing in 1979, the Supreme Court ruled that the questions Herbert pro-
pounded in pretrial inquiries were appropriate and should be answered by Lando.
Since a public figure can prevail only by showing that a publisher knew or had
reason to suspect his publication was false, plaintiff may “inquire directly from
the defendants whether they knew or had reason to suspect that their damaging
publication was in error.”16
Defendants had argued that requiring disclosure of editorial conversations
and of a reporter’s conclusions about the veracity of the material he had gath-
ered would have an intolerable chilling effect on the editorial process and edito-
rial decision making. The Court responded that “if the claimed inhibition flows
from fear of damages liability for publishing knowing or reckless falsehoods,
those effects are precisely what New York Times and other cases have held to be
consistent with the First Amendment.” The Court found it was desirable to
have the media resort to prepublication procedures to avoid infliction of harm
by the publication of false information; it doubted that such error-avoiding
procedures would be deterred because the editorial process will itself be exam-
ined in the tiny percentage of instances in which error is claimed and litigation
ensues.17
The Court conceded that inquiries incident to proof of actual malice or
other fault increased the publisher’s burdens associated with defamation law-
suits. Defendants had urged that these large costs would intimidate the press
and lead to self-censorship, particularly where smaller newspapers and broad-
casters were involved, and that in addition to expenses incurred in pretrial
inquiries, Lando and his associates had been diverted from news gathering and
reporting for significant periods of time. The Court responded that creating a
bar to inquiry into the editorial process would not solve this problem: “Only
complete immunity from liability for defamation would effect this result, and
the Court has regularly found this to be an untenable construction of the First
Amendment.”18
I N 1983 J A M E S D O L A N WA S M U N I C I PA L J U D G E of Hamilton, Ohio, and a

candidate for reelection. Daniel Connaughton, a local attorney, was Dolan’s
challenger in the upcoming election. In September 1983 Connaughton devel-
oped evidence that Billy Joe New, the court administrator, had accepted bribes.
The principal witness against New was Patsy Stephens. In a tape-recorded in-
terview in Connaughton’s home in September, Stephens explained that on forty
or fifty occasions she had made cash payments to New to dispose of various
minor criminal charges against her husband, her other relatives, and her ac-
quaintances. After Stephens had passed a lie detector test, Connaughton filed a
written complaint against New, who in due course was arrested, indicted, and
convicted.
Alice Thompson was Patsy Stephens’s younger sister. She was one of eight
persons present at the taping of her sister’s interview. In October 1983 Thomp-
son participated in a taped interview with staff members of the Journal News, a
local newspaper. In that interview she asserted that Connaughton had stated (1)
that his purpose in taping the Stephens interview was to get evidence that would
scare Dolan and New into resigning without his having to make any public use
of the tape, (2) that he would buy a restaurant for the sisters’ parents to operate,
(3) that he would provide jobs for both Stephens and Thompson, (4) that he
would pay the sisters’ expenses for a three-week vacation in Florida and take
them out to a victory dinner at an expensive French restaurant after the elec-
tion, and (5) that he would not allow the sisters’ involvement in the incident to
become public knowledge. Thompson claimed Connaughton had turned off the
tape from time to time during the Stephens interview so these statements would
not be recorded.
The Journal News staff interviewed Connaughton and all others present at
the Stephens taping session except for Stephens herself. All denied that
Connaughton had made any of the statements Thompson attributed to him.
Connaughton supplied the Journal News with a tape of the Stephens interview;
Journal News personnel did not listen to the tape. On November 1, 1983, one
week before the election, the Journal News published a story reporting Thompson’s
accusations and Connaughton’s denials. The newspaper also endorsed Dolan
for reelection. Connaughton lost the election and sued the Journal News for
defamation. He recovered $5,000 in compensatory damages and $195,000 in
punitive damages. A jury found that the story at issue had defamed Connaughton,
that it was false, and that it had been published with actual malice. An appellate
court affirmed the judgment as one amply supported by the evidence of record.
In 1989 the U.S. Supreme Court also affirmed.19
Connaughton, as a candidate for public office, had to prove actual mal-
ice—in this case a reckless disregard for the truth. The Court cited several
matters in support of the jury’s finding: (1) The Journal News did not interview
Patsy Stephens, “the one who was most likely to confirm Thompson’s account of
the events.” (2) The remaining six witnesses, including Connaughton, all denied
Thompson’s charges and supported Connaughton’s version of the events. (3)
The Journal News did not listen to the tape, available to the newspaper, of the
Stephens interview in Connaughton’s home, even though the tape would have
provided critical evidence on a number of issues—including Thompson’s charge
that Connaughton had frequently turned off the tape machine. (4) A Journal
News editorial, antedating any investigation into Thompson’s charges, intimated
that the newspaper would take a stand based on the outcome of an investigation
yet to be made—that is, that the paper would reveal damaging evidence relating
to the election. (5) Discrepancies in the testimony of Journal News personnel
indicated that they had failed to conduct a complete investigation.20 The Court
concluded, “[I]t is likely that the newspaper’s inaction was a product of a delib-
erate decision not to acquire knowledge of facts that might confirm the prob-
able falsity of Thompson’s charges. Although failure to investigate will not alone
support a finding of actual malice . . . the purposeful avoidance of the truth is in
a different category.”21
T H E C E N T R A L Q U E S T I O N I N A L L O F T H E S E C A S E S is the publisher’s state of

mind. Did he lie deliberately? If not, did he proceed notwithstanding an aware-
ness of the probable falsity of the statements made? Or did he engage in a
deliberate effort to avoid evidence of the falsity of such statements? If the an-
swer to any of these questions is yes, the publisher did not act in good faith, and
a finding of actual malice is appropriate.
The questions are simple and straightforward. But as the cases in this chap-
ter demonstrate, ascertainment of the correct answers may be a tedious and
time-consuming effort.
T W E N T Y - T H R E E
THE LOSING GAME
F O R T H E M O S T PA R T , the law of constitutional privilege relies on substantive

distinctions to achieve an accommodation between the First Amendment interest
in facilitating free expression and the social and private interests in protecting
reputation. A three-tier system has evolved. The highest level of protection—
the requirement of actual malice (deliberate falsification or reckless disregard
for the truth)—applies to statements relating to the performance, postures, and
character of public officials wielding significant discretionary authority (see
Chapters 2 and 6); to the records and qualifications of candidates for public
office (see Chapter 5); to the activities of nongovernmental entities exercising
substantial influence over policies important to the public (see Chapters 8 and
12); and to the positions and background of private persons prominent in de-
bates about public affairs (see Chapters 7, 9, and 13). In some respects the
application of the rule appears over-broad—encompassing athletes, entertain-
ers, and other celebrities without regard to whether they have been active in
addressing or influencing public issues (see Chapter 8). In other respects the
rule seems too narrow—excluding persons not in the public limelight who have
played critical roles in stories of importance to the public: the delinquent low-
level public official (the hypothesized furtive night watchman) (see Chapter 6),
the recipient of government largesse (Dr. Hutchinson) (see Chapter 10), and
the possible beneficiary of lax law enforcement (Ilya Wolston) (see Chapter 11).
To cope with these cases, more attention may have to be devoted to the concept
of the “involuntary public figure” (as exemplified by air traffic controller
Dameron) (see Chapter 12).
THE LOSING GAME 157
The next tier of protection—applicable to discussions of private persons

involved in public issues—picks up all of these omissions and affords the media
a substantial measure of protection, although less than the actual malice stan-
dard. To succeed, the defamed individual must prove that a defamatory state-
ment “of and concerning” him was false and was the product of the defendant’s
negligence (see Chapters 9, 13, and 18). Even then the plaintiff is limited to
recovery of “actual damages” (to the exclusion of presumed and punitive dam-
ages) unless the plaintiff ’s proof satisfies the actual malice standard of the first
tier of protection (see Chapter 9).
Finally, the least protection—and possibly no protection—is afforded at
the third tier: to defamatory statements directed at neither public persons nor
public issues. At this level presumed or punitive damages may be allowed with-
out proof of fault by the publisher, and the publisher may have the burden of
showing truth if the falsity of the statement is at issue. Dun & Bradstreet appears
to support these limitations on the scope of constitutional privilege (see Chap-
ter 14). But the question is not fully resolved. Some courts—now familiar with
the standards of New York Times and Gertz—may decline to revert to common
law standards, particularly as regards strict liability, when defamations in this
third tier are at issue (see Chapters 9 and 13).
The overriding problem, however, is not in the details of the configuration
of the three-tier system. However one chooses to resolve unsettled issues, the
law of constitutional privilege will continue to be complex—characterized by
close questions and by substantial uncertainty at the margins. More important,
substantive principles will not resolve the fundamental tensions associated with
constitutional privilege. The present law and any conceivable revision of that
law will continue to be unsatisfactory to the victims of defamation, to the press,
and to private citizens exercising their rights under the First Amendment, as
well as to members of the public as recipients of information.
VICTIMS
Many innocent victims of defamatory attack are without redress under the
present law. If the attack occurs during a discussion of an issue of public con-
cern, the plaintiff confronts major barriers. An egregious error about a public
official or a public figure cannot be effectively challenged if the defendant acted
in good faith—no matter how slipshod its investigation of the facts or its for-
mulation of the language in issue. In instances in which the plaintiff is a private
person defamed in a discussion of an issue of public concern, the plaintiff may
recover on proof of negligence; but it must bear the burden of proving negli-
gence as well as proving falsity and defamatory impact.
Only a small fraction of defamation lawsuits are successful—estimated at

between 5 and 10 percent.1 Prospects are particularly poor if the plaintiff is a
public official or a public figure.
THE SPEAKER
For the press, the present state of the law poses two substantial problems: intru-
sive inquiries into editorial processes, and substantial costs associated with
litigation and possible liability.
First, a statement is protected under New York Times only if it is made with
a good faith belief in the truth of the defamatory assertion. Accordingly, the
press is in no position to resist intrusive inquiries into the journalistic process.
Plaintiffs are entitled to make a searching review of virtually every stage of the
process of journalistic inquiry and expression—including sensitive editing de-
cisions—in an effort to uncover evidence of deliberate fabrication or reckless
disregard for the truth. The inquiry is time-consuming for the journalists impli-
cated in the litigation and threatens to disrupt sound journalistic practices.2
Second, the costs of litigating defamation actions are high and not easily
avoided. Despite their poor prospects, victims of defamation continue to sue,
motivated in large measure by an effort to clear their names; they are not
always mindful of the costs they must bear. In some few cases they prevail,
inflicting potentially large judgments on media defendants. In 1997, plaintiffs
prevailed in half of twenty-two trials held that year (although some were re-
versed on appeal).3 One jury award, subsequently set aside, was for $22.7 mil-
lion.4 The costs of libel litigation can be crippling to a small media firm and are
not easy to ignore by a large enterprise if it is interested in showing a profit.5
Some stories may not be pursued by the media because they view the prospec-
tive cost—considering both the probability and expense of litigation—to be too
high.
For the private spokesperson, intrusive inquiry is not normally a problem.
But the threat of litigation costs and the prospect of an adverse judgment pose
even greater problems unless the private person is judgment-proof.
Insurance is available for some media enterprises, but it is expensive, and
coverage is often limited.6 Since liability for intentional wrongs is not covered
in most individual homeowner and liability policies, the risk to the private
person is uninsurable in many instances.
THE PUBLIC
The public’s interest in the free flow of information is not well served by the
prevailing doctrines governing defamation and constitutional privilege. No ef-
THE LOSING GAME 159
fective mechanism exists for the correction of error. And in some respects the
public dialogue is impoverished, not enriched.
On many issues, the citizenry relies on public debate to resolve contro-
versy. But a problem is posed if the parties to the controversy are not equally
endowed. That underlying disequilibrium is difficult to resolve, and no effort at
a general solution is offered here. But in the case of defamation, which by
hypothesis poses a risk of harm to identifiable individuals or firms, the mis-
match is likely to be severe—as where a media enterprise defames a private
individual or entity. In some cases the imbalance may be rectified by the de-
famed person’s prominence or by the resources at his or her disposal. One
justification for imposing additional burdens on defamed public figures is their
supposed access to the media.7 But that access is not invariably available and in
many cases may prove inadequate. With respect to private persons, no such
assumption is made about access; typically, none exists. The result is a flow of
defamatory falsehoods not easily rebutted in the public discourse and a conse-
quent distortion of information available to the public.
Moreover, constitutional privilege is a mixed blessing in terms of encour-
aging uninhibited public debate. On the one hand, discourse is encouraged to
the extent that persons can speak without undue fear of liability or litigation
grounded in defamation. But the configuration of constitutional privilege may
have a deterrent effect on citizen participation in public discourse. To aggres-
sively advocate one side of an issue of public concern is to become a public
figure with respect to that issue. A person so positioned loses substantial pro-
tection against defamation, including assertions attacking attributes of an
individual’s character related to credibility—which may open to scrutiny and
possible distortion almost anything in a person’s private life.8 Some individuals
may forgo participation in public discourse if the price they must pay is en-
hanced vulnerability to character assassination. Public discourse is not neces-
sarily enriched if concessions made to some participants (mainly the media)
have the effect of reducing participation by others (private persons as potential
advocates).
I N S U M , T H E P R E S E N T F O R M U L AT I O N O F S U B S TA N T I V E P R I N C I P L E S —the three-
tier system summarized at the outset—engenders an unhappy train of consequences
for victims of defamation, for speakers of potentially defamatory assertions,
and for the public generally.9 Some revisions in this structure could achieve
improvements in the present regime. A number of proposals have been ad-
vanced in previous chapters. But no conceivable reformulation can remedy the
underlying tensions. Can a solution be devised that will ameliorate these prob-
lems without creating more troublesome difficulties? The answer lies not in the
revision of substantive principles. The key is procedural law reform.
T W E N T Y - F O U R
BRING IN DA PLEA BRING IN DA WRIT
I N I M P L E M E N T I N G C O N S T I T U T I O N A L P R I V I L E G E , the Supreme Court has ar-

ticulated procedural as well as substantive principles. Some of these have been
considered in previous discussions: the requirement of clear and convincing
evidence of actual malice when actual malice is the pertinent standard of fault
(see Chapters 2 and 22), the exclusion of presumed and punitive damages in
other constitutional cases unless actual malice is proved (see Chapter 9), and
the requirement that the defamation plaintiff bear the burden of proof as to
falsity in at least a significant subset of cases (see Chapter 18). In addition, the
Supreme Court has insisted that appellate courts independently review findings
of fact on actual malice;1 other issues, such as falsity, may be encompassed by
the same requirement.
Accordingly, procedural reform is not an approach at variance with any
constitutional principle or practice. The purpose of constitutional privilege is to
resolve the conflict between expressive values embodied in the First Amend-
ment and the public and private interests in protecting reputation against unjus-
tified attack. If the conflict can best be resolved by procedural means, that
solution should be adopted.
The proposals that follow consider the conflicts engendered by defamation
in three stages: (1) communications exchanged in advance of litigation to ob-
tain a retraction or a correction, (2) an initial phase of the litigation in which
most contested issues may be resolved with minimum cost, and (3) a second
phase of the litigation in which potentially costly proceedings ensue as regards
issues not otherwise resolved.
Preliminarily, it must be emphasized that these procedures are proposed

only with respect to cases in which constitutional privilege may be invoked. For
cases not arising out of discussions of issues of public concern—cases governed
by Dun & Bradstreet—constitutional privilege is not implicated (see Chapter
14); other procedures may be appropriate. Also, I defer for subsequent consid-
eration cases in which the plaintiff alleges that it has sustained a demonstrable
economic loss.
RETRACTION AND CORRECTION

The avoidance of litigation provides an obvious saving for all concerned. More-
over, the principal motivation of most defamation victims is to clear their names.
That objective can best be achieved by an effort by the victim to seek retraction
or correction.
Many state statutes have detailed provisions concerning demands for re-
traction or correction.2 None is pursued here. Most are unduly cumbersome
and technical. For present purposes the starting point is a recognition that the
victim has a strong personal interest in obtaining a timely correction; the longer
the error persists in the public mind, the greater the injury to the victim. Simi-
larly, the victim has a personal interest in making an effective demand—de-
scribing with particularity the statements alleged to be defamatory, the respects
in which they are defamatory, the errors that render them false, and—unless
clear on the face of the statements—the way in which the statements refer to the
victim. The prospects for retraction or correction are remote if the speaker or
publisher cannot readily identify the particular statements at issue and the re-
spects in which they are allegedly defamatory and false in their application to
the plaintiff.
The main problem is providing the speaker or publisher with an incentive
to respond affirmatively to demands that are timely, informative, and justified
on the merits. That incentive can be given by exempting the defendant from any
liability in damages, except for demonstrable economic losses, if an appropriate
retraction or correction is made. Again, formal requirements are eschewed,
although pertinent state statutes may provide guidance. The essential objective
is that the retraction or correction be delivered in a manner calculated to reach
the same audience as the original defamation.
In the case of media with a prescribed publication routine, the timing and
placement of the corrective notice should parallel the timing and placement of
the original defamation. If the defamation occurred on the first page of a daily
publication or in the lead story of an evening newscast, the corrective notice
should be accorded equal time and prominence (first page or lead story, as the
BRING IN DA PLEA BRING IN DA WRIT 163
case may be). Where this is impracticable—because the actionable defamation

occurs in a book or a speech or in a statement by a private citizen—exact
parallels for a corrective message are infeasible. But the objective is the same.
Paid advertisements in an appropriate publication may be required. The prob-
lem here is the same as the one confronted by a manufacturer seeking to alert
consumers to a newly discovered hazard associated with its product. Within the
limits of practicality, the objective of correction or retraction is to reach the
persons who received the original defamation.
Discussion of possible drawbacks in this approach will be deferred until all
of the procedural proposals are set forth.
FIRST PHASE OF THE LITIGATION

The plaintiff must plead the usual elements of a defamation claim: publication,
defamatory content, identification of the plaintiff, and falsity. (In some cases
proof of “special damages” may be required; of this, more later.)
In most instances the facts pertaining to publication and to identification
of the plaintiff are not disputed. The issue of defamatory content may be con-
tested. If so, that issue must be submitted to a trier of fact: if the statement at
issue is susceptible to a defamatory meaning but might also be given a benign
interpretation, the trier of fact must determine whether the statement is defam-
atory. The issue of falsity also may be in dispute; again, submission to the trier
of fact is required.
If the plaintiff cannot set forth a prima facie case of publication, defama-
tory content, falsity, and identification of the plaintiff, the complaint should be
summarily dismissed. But only the most frivolous complaints are likely to be
rejected at this stage.
A more important class of cases involves those in which the complaint is
not frivolous and the merits of the plaintiff ’s grievance are conceded. In such
cases the complaint should be dismissed if no economic losses are at issue and
either (1) defendant has already made an appropriate response to a demand for
retraction or correction, or (2) defendant has yet to make an appropriate retrac-
tion or correction but is prepared to do so forthwith.
In both instances no further issues need be litigated, and the plaintiff recov-
ers no damages. The only difference between the two outcomes is that in the
second case, if the defendant has failed to respond appropriately to a plaintiff ’s
demand for retraction or correction—a demand sufficient to apprise defendant
of the scope and basis for the corrective action demanded—plaintiff recovers
its reasonable litigation costs, including counsel fees, in the first phase of the
litigation. Defendants should have an incentive to hold plaintiffs harmless, to
the greatest extent possible, in the event of defamatory falsehoods. Minor im-
perfections in the plaintiff ’s demand should not bar recovery of litigation costs
if a defendant is sufficiently apprised of the merits of the plaintiff ’s claim. But a
court should have discretion to reject a claim for costs or to reduce it propor-
tionately if the plaintiff fails to cooperate fully in furnishing information the
defendant needs to resolve the grievance.
If the defendant does not concede that the plaintiff has a meritorious claim,
the claim must be set for trial. The principal issue at this stage is likely to be
falsity, but other issues may remain such as defamatory content. Plaintiff has
the burden of proof on all of these issues, and its complaint should be rejected
if the plaintiff fails to carry its burden.
Depending on the nature of the defamation, trial of the issue of falsity may
be easy or difficult. If it is easy, the litigation can normally be resolved in the
first phase. Other elements of the plaintiff ’s case are unlikely to prove difficult
if they are triable at all. The outcome in these “easy” cases will be a judgment
that the plaintiff has or has not borne his burden of proof in establishing a
defamatory falsehood pertaining to him. If the plaintiff fails, the complaint is
dismissed. If the plaintiff succeeds, he obtains a judgment to the effect that the
defamation is a falsehood. He also recovers reasonable litigation expenses. In
exceptional cases, where the plaintiff has contributed to an obfuscation of the
facts leading to the falsehood or has failed to cooperate in resolving the dispute
as to falsity, a judge should have discretion to reject or reduce an award of costs
to the plaintiff.
Issues of fault are not litigated at this stage, and in a case in which the issue
of falsity does not appear to be easy, a trial judge should have discretion to defer
a determination of the issue of falsity to the next stage. The competing consid-
erations are these. Absent economic losses, resolution of the issue of falsity will
conclude the litigation without further proceedings. But if the issue of falsity is
inextricably intertwined with the issue of fault, it may be inefficient to try them
separately. Sequential decisions are preferable from the plaintiff ’s perspective
and may be preferred by the defendant as well if it feels it can effectively counter
the plaintiff ’s claim of falsity without the litigation expenses and intrusiveness
associated with litigation of the issue of fault.
A resolution of the issue of falsity will terminate the litigation at this stage.
It will clear the plaintiff ’s name if the plaintiff prevails, and it will vindicate the
speaker if the defendant prevails. In no event does the speaker confront any
liability beyond the reasonable litigation expenses of the successful plaintiff.
Again, a discussion of the possible drawbacks of this approach will be
deferred.
SECOND PHASE OF THE LITIGATION

In cases in which the issue of falsity proves particularly difficult to resolve,
further proceedings may be required. Now the substantive principles of consti-
tutional privilege come into play. Plaintiff must prove not only falsity but the
requisite degree of fault. Defendant may seek to defend on either or both of
these issues. The possible outcomes are these:
1. If the plaintiff prevails on both falsity and fault, it is entitled to full damages
allowable under New York Times and Gertz: (a) actual damages, including
compensation for loss of reputation and for emotional distress, if the case is
governed by Gertz and actual malice is not proved; and (b) the same damages,
plus possible presumed and punitive damages, if actual malice is shown with
the requisite degree of clarity.
2. If the defendant prevails on falsity, the complaint is dismissed for failure of

proof. The plaintiff recovers neither damages nor litigation expenses.
3. If the plaintiff prevails on the issue of falsity but fails to prove the requisite
degree of fault, it recovers a judgment that the defamation is false; it also
recovers reasonable litigation expenses. As before, the trial judge should have
discretion to reject or reduce the award of litigation costs to the plaintiff if the
plaintiff needlessly prolongs the litigation or contributes to unnecessary expense.
If, for example, the plaintiff cannot prove fault, it should say so. Litigation in
which this concession has been made should not reach the second phase; it
should be resolved instead under the procedures, and with the possible
outcomes, recommended in connection with the first phase.
The defendant is subjected to increased vulnerability in the second phase

of the litigation, giving it an incentive to resolve the litigation at the first phase
if practicable. In exchange for a concession on falsity or an adverse ruling in
litigation focusing mainly on that issue, the defendant gains immunity from all
damages beyond litigation expenses except for the plaintiff ’s demonstrable eco-
nomic losses—to which we now turn.
TREATMENT OF ECONOMIC LOSSES

If a plaintiff can show demonstrable economic losses, it is afforded an opportu-
nity to recover those losses within the framework described earlier.
Retraction and Correction

If economic losses are in issue, litigation cannot be forestalled by a retrac-
tion or a correction. But a defendant may be inclined to cooperate in making a
retraction or a correction, if plaintiff ’s demand is well-grounded, for two rea-
sons: (1) a timely retraction or correction is of value in curtailing an escalation of
economic losses, and (2) if the issue of falsity is resolved, the parties may be able to
reach a negotiated settlement on the compensation to be paid for economic
losses—which are normally more easily calculable and more limited in magni-
tude than damages claimed for loss of reputation and for emotional distress.
First Phase of the Litigation

The magnitude of economic losses becomes an issue to be resolved in the
first phase of the litigation. If the defendant prevails because the plaintiff cannot
show defamatory content or falsity or any other element of its case, judgment is
entered for the defendant. If the plaintiff prevails, it obtains a judgment en-
compassing three elements: (1) a declaration that the defamation is false, (2) an
award of reasonable litigation expenses (subject to the limitations previously
noted), and (3) an award in the amount of plaintiff ’s demonstrated economic
losses. As to the first two elements, the judgment is not open to relitigation.
But the defendant can, if it wishes, resist the award of compensatory damages
by claiming constitutional privilege, propelling the litigation into the second
phase. The trial judge also would have the discretion to refer all issues to the
second phase if she concluded that piecemeal litigation would be duplicative
and wasteful.
Second Phase of the Litigation

Except for the addition of an issue as to economic losses, this litigation
proceeds as before. The defendant is vulnerable to recovery of damages exceed-
ing economic losses if plaintiff carries its burden under New York Times or Gertz
(whichever is applicable). If plaintiff fails to carry that burden but falsity is
proved, plaintiff obtains a declaratory judgment to that effect and its reasonable
litigation expenses (subject to limitations previously noted). In the latter case,
plaintiff does not recover for economic losses.
The existence of economic losses should not change the dynamics of the
litigation except in instances in which such losses are unusually large. Both
parties have strong incentives to settle the litigation short of the second phase,
and economic losses lend themselves to calculation and compromise. In this
context the tail should not wag the dog.
EXPECTED BENEFITS OF THE PROPOSED PROCEDURAL REFORM

Absent economic losses, plaintiffs are afforded an expeditious and largely cost-
free means of vindicating their reputations if their claims are meritorious. De-
fendants have an incentive to cooperate in retraction or correction to avoid the
costs associated with the first phase (including possible payment of plaintiffs’
reasonable litigation expenses). Plaintiffs may be expected to act appropriately

in seeking a retraction or a correction because it is in their interest to do so. If
they act inappropriately, they delay corrective action to the first phase. More-
over, they will have to bear all or most of their litigation expenses associated
with that phase. They recover no additional damages as a result of delay if the
case is resolved in the first phase.
Given the incentives provided to each party, most easy cases should be
resolved short of litigation. If the parties fumble their prelitigation opportuni-
ties, the same outcome is reached nonetheless at the conclusion of the first
phase. The only difference is that the plaintiff must bear all or most of its
litigation expenses if it behaved inappropriately in the prelitigation phase; the
defendant must bear plaintiff ’s reasonable litigation expenses, as well as its own
expenses, if it behaved inappropriately in the prelitigation phase; and the plain-
tiff may have to bear some portion of its litigation expenses if the defendant
behaved inappropriately in the prelitigation phase but the plaintiff ’s prelitigation
behavior also was deficient in some respects.
If a case is not amenable to resolution in the first phase, both the stakes and
the litigation expenses will escalate. If the defendant elects to litigate both falsity
and fault in the second phase, it faces the enhanced risk of full liability under
New York Times and Gertz. But that liability is not greater than the liability
presently confronting defamation defendants. More significant, that liability
can be avoided or substantially mitigated if the plaintiff and the defendant coop-
erate to litigate the merits of the issue of falsity in the first phase. The defendant
has an incentive to do so to avoid enlarged liability. The plaintiff has an incen-
tive to do so to obtain vindication of its reputation sooner rather than later and
to be held harmless with respect to litigation expenses (assuming it prevails in
the first phase).
The essential feature of the proposed procedural reform is that the issue of
truth or falsity is resolved—by litigation or otherwise—independent of, and usually
prior to, any assessment of fault. If the defamation is not conceded or proved to be
false, the defendant is exonerated. If the defamation is proved to be false and
the case does not proceed to the second phase, the defendant is protected
against substantial liability, and the plaintiff obtains vindication of its reputa-
tion and—under appropriate circumstances—reasonable litigation expenses.
In sum, plaintiffs with meritorious claims have a means to obtain what they
want most—vindication of their reputations against defamatory falsehood. At
the same time, defendants have a means to avoid any liability or litigation
expenses (apart from economic losses) if the issue of falsity can be resolved
short of litigation; the proposal also limits their liability to plaintiffs’ reasonable
litigation expenses (and provable economic losses) if the issue of falsity can be
resolved in the first phase. In a substantial class of cases, defendants are in a
position to avoid, or to impose a meaningful cap on, damage awards in defama-
tion. The need for intrusion into media editorial processes also should be reduced
appreciably. The only case in which the defendant is made more vulnerable than
under existing law is when the defamation is false but falsity cannot be deter-
mined until the first phase; in such cases a defendant is liable for the plaintiff ’s
reasonable litigation expenses if the plaintiff has acted appropriately. But there
is no prospect of enhanced or indeterminate damages in such cases.
Finally, the public gains if the proposal functions effectively in providing a
means to correct defamatory falsehoods. Corrections of misinformation facili-
tate the proper resolution of public debates and provide a more reliable foundation
for decision making by both public and private entities. Moreover, provision of
an effective means to correct defamatory falsehoods should remove an unneces-
sary hazard to private participation in public debate. Unjustified defamations
need not go unchallenged or uncorrected. Finally, the public as well as the
litigants stand to gain if defamation cases can be reduced or simplified, thereby
reducing the burden on the judiciary.3
MEANS OF IMPLEMENTATION
To implement the proposed reform under the aegis of the First Amendment,
the Supreme Court must impose limits on the assertion of constitutional privi-
lege, requiring that the issue of falsity be litigated first whenever practicable. A
defendant may not seek shelter under the requirement of fault, whether actual
malice or negligence, without first resolving the issue of falsity or satisfying a
trial judge that the issue of falsity cannot be adjudicated independent of the
issue of fault. Falsity and fault are litigable issues under constitutional privilege;
and the Supreme Court can rule that if constitutional privilege is to be asserted
by a defendant, it must be asserted in sequential fashion as a requirement of
federal constitutional law, generally resolving falsity prior to fault. This require-
ment—not intrinsically different from procedural requirements already associated
with constitutional privilege—provides the framework for separate adjudica-
tions in phase one and phase two, as described previously.
As for recovery of a plaintiff ’s reasonable litigation expenses, these may be
viewed as caps on allowable damages, the same in principle as the limits im-
posed in Gertz. If the plaintiff prevails on falsity, it obtains reasonable litigation
expenses, if it has behaved appropriately, without regard to defendant’s fault—
which need not be litigated in most cases. If the plaintiff prevails on both falsity
and fault, it obtains the full damages presently allowable under New York Times
and Gertz; hopefully most cases will never reach this stage. If the defendant
prevails on falsity, the plaintiff recovers nothing.
States are free to circumscribe defamation actions with additional limita-
tions pertaining to demands for retraction and order of proof. But a federal
privilege can be asserted only in the manner set forth previously; and the states,
by dint of the Supremacy Clause, must permit defendants to assert federal
privileges in the manner prescribed by federal law—in this case, a constitu-
tional privilege mandated by the First Amendment.
If a state, as a matter of state law, chooses to afford defendants greater protec-
tion by making adjudication of fault an integral part of every case and rejecting the
sequential litigation proposed here, they are free to do so. But the privilege at issue
is then a state privilege not fashioned under the aegis of the First Amendment.
Even so, the pertinent policies at the state level are the same as those operative
at the federal level, and states may be expected to follow the federal lead, as
most have done on other issues—for example, in the retreat from the approach
of Rosenbloom and acceptance of the principles of Gertz. (In other cases state
decisions anticipated federal rulings, as in Dun & Bradstreet.)
PRACTICALITY OF IMPLEMENTATION
All of the elements of the proposed reform are available under existing law and
practice. Retraction statutes are commonplace. The idea can be incorporated
in constitutional privilege without broaching uncharted terrain. The sequential
trial of issues in dispute is also commonplace. Indeed, on occasion innovative
judges have employed the very sequence proposed here. In some cases, once
falsity is resolved in plaintiff ’s favor, plaintiff declares herself satisfied and de-
sists from further litigation. (That was the final outcome in Time, Inc. v. Firestone.)
Finally, awards of plaintiff ’s reasonable litigation expenses, conditional on
plaintiff ’s success, are a common feature of civil litigation where, as here, plain-
tiffs as a class may be unduly disadvantaged by the litigation process.
The principal bar to adoption of the proposal for procedural reform is
opposition of the media, which have been effective in barring even the most
modest legislative reforms.4 But media opposition is not an obstacle to the
reform of constitutional privilege, initiated by the Supreme Court and subject
to refinement and modification by that body. The proposed reform seeks to
accomplish the objectives articulated by the Court: protection of reputation to
the extent consistent with the furtherance of free expression on issues of public
concern. No fundamental values are threatened; no undue burden is imposed
on the courts or other public or private institutions. Indeed, the prospect is for
a reduction of unnecessary burdens as well as the alleviation of hardships and
burdens imposed on victims of defamation, on parties charged with defama-

tion, and on the public generally.
CONSTITUTIONALITY OF THE PROPOSAL

Pat Tornillo was a candidate for the Florida House of Representatives. On
September 20 and again on September 29, 1972, the Miami Herald published
editorials critical of Tornillo’s candidacy. Tornillo demanded that the Herald
print verbatim his replies to the critical editorials, invoking a Florida statute
affording political candidates a “right of reply” to newspaper attacks on their
candidacies. The statute required that the reply be published without charge
and be afforded the same prominence and space as the original attack. Crimi-
nal sanctions were specified for violations.
Writing in 1974, the U.S. Supreme Court held that the statute violated the
First Amendment. It made three points:
1. “The Florida statute exacts a penalty based on the content of a newspaper,”
consisting of the costs of printing the reply and the “taking up of space that
could be devoted to other material the newspaper may have preferred to print.”
2. Faced with the prospect of penalties traceable to the right-of-reply statute,

“editors might conclude that the safe course is to avoid controversy,” thereby
dampening the vigor and limiting the variety of public debate.
3. Finally, even if a newspaper would face no additional costs or be forced to forgo

publication of other news or opinion by reason of the right-of-reply statute, “the
Florida statute fails to clear the barriers of the First Amendment because of its
intrusion into the domain of editors.”5
Does Tornillo constitute a barrier to implementation of the proposed pro-

cedural reform? It does not.
First, unlike Tornillo, the proposal made here for corrections or retractions
leaves all formulations to the media themselves. No one other than the media
controls the media’s expressions.
Second, unlike Tornillo, the present proposal comes into play only when a
speaker or a publisher is accused of wrongful behavior—the utterance of a
defamatory falsehood. The proposed reform simply increases the options avail-
able to the media and others in responding to charges of wrongdoing.
Third, unlike Tornillo, nothing in the present proposal would tend to dampen
the vigor or limit the variety of public debate. As developed more fully in
Chapter 25, the proposed reform actually enhances free expression by provid-
ing the media and others with means of responding to charges of defamation
that entail lower costs and lower risks than the existing regime.
Finally, to the extent that the media or others must incur some costs in
responding to problems arising out of defamatory utterances—for example, in
responding to demands for retractions or corrections—the costs are not incom-
patible with the First Amendment. Far more extensive costs, coupled with sub-
stantial intrusions into editorial processes, were approved in Herbert v. Lando,
discussed in Chapter 22. Tornillo, decided five years earlier, was at the heart of
the arguments advanced by the media in Herbert v. Lando. The arguments were
squarely rejected. Tornillo was cited and discussed in each of the four opinions
in that case.6
Tornillo is not an impediment to employing the proposed reform to imple-
ment the doctrine of constitutional privilege in a way that would more effectively
accommodate the goals of free expression and the protection of reputation
against unjustified attack.
RELEVANCE TO OTHER TORT ACTIONS

The procedures here proposed should be applicable, without significant varia-
tion, to actions for product disparagement and to claims of false light privacy.
They also should apply to actions for interference with contract or for inten-
tional infliction of emotional distress when either is premised on allegedly false
communications to third persons. But the proposed procedures have no bear-
ing on actions for invasion of privacy or for intentional infliction of emotional
distress grounded on harm arising from hostile communications to or about the
victim that are true or are lacking in factual content. These cases do not turn on
truth or falsity and thus are not amenable to resolution under the procedures
proposed.
T W E N T Y - F I V E
POSSIBLE PITFALLS
W I L L T H E P R O P O S E D R E F O R M engender negative side effects, countering the

salutary consequences sought: (1) Will there be too many defamations? (2) Too
many demands for retraction? (3) Too many lawsuits? (4) Too many issues to be
litigated? (5) Is the asymmetrical approach to responsibility for litigation ex-
penses unfair to defendants? (6) Is the curtailment of recoveries unfair to suc-
cessful plaintiffs? (7) Does the proposal unduly impair free expression? (8) Are
there special problems in seeking to litigate the truth or falsity of a defamatory
utterance?
TOO MANY DEFAMATIONS?

Since defendants can escape all liability in damages by timely retraction or
correction in most cases and since they face only limited liability in cases adju-
dicated under the first phase, will the media and private persons be less inhib-
ited in uttering defamatory falsehoods? A definitive answer cannot be given, but
potential defamers remain subject to some constraints.
First, the proposed protections do not apply to defamations about private
persons unrelated to public issues. Thus many private and personal defama-
tions, of the type discussed under “Purely Private Libels” (Chapter 14), remain
subject to traditional defamation liability and are not affected by this proposal.
Second, a culpable defamer remains responsible for economic loss. In this
connection “economic loss” is to have the scope normally accorded that con-
cept in tort litigation. Thus a business or a professional person or an employee
would be entitled to recover any economic loss that can be related to the defa-
POSSIBLE PITFALLS 173
mation with appropriate probability—employing inter alia statistical analyses

of economic data before and after the defamation in issue. (But no damages
could be recovered in any case without meeting the requirements governing
constitutional privilege.)
Third, retractions are not without cost and may be a source of embarrass-
ment to the defamer. No one likes to make a public confession of error. The
courts can be appropriately demanding in insisting that the retraction or cor-
rection be calculated to reach the same audience as the original defamation and
convey the full extent of the original error. To be sure, some media enterprises
and private persons may litter the landscape with groundless defamations. But
rigorous application of the requirement of retraction or correction should curb
the practice, and a party with a record of retractions is unlikely to remain a
credible source.
TOO MANY DEMANDS FOR RETRACTION?

Since demands for retraction or correction may be made informally and would
have to be taken seriously by the media and others, a risk emerges that de-
mands for retraction may be excessive. But most states now have retraction
statutes to which significant legal consequences attach; these have not generated
an unmanageable number of demands for retraction. Further, under the present
procedural proposal, the party making the demand has an incentive to cooper-
ate with the alleged defamer in providing whatever information is required to
clarify the circumstances giving rise to the controversy. The media (and others)
may reject frivolous demands out of hand—as when the statement in issue does
not identify the plaintiff or does not defame him—and refuse to accede to de-
mands in instances in which, after examination, the spokesperson is unpersuaded
of the falsity of the alleged defamation. Demands for retraction or correction
require initial action by the aggrieved party and require that party’s continuing
cooperation. The process is not without costs and inconveniences to the party
claiming defamation, and nothing in the present proposal encourages frivolous
demands. A demand for retraction is not a prelude to a litigation windfall.
TOO MANY LAWSUITS?

The whole point of the retraction process is to reduce the number of lawsuits,
and there is every reason to expect that it will. Plaintiffs have no incentive to
litigate once they have obtained appropriate redress at the retraction stage.
Plaintiffs can obtain no recovery at all unless they establish two propositions:
(1) that the alleged defamation is false and otherwise actionable as defamation
and (2) that the plaintiff behaved appropriately in the prelitigation phase in
seeking a retraction and in cooperating to resolve disputed issues. If the plain-

tiff does prevail in the first phase, all he obtains is a determination of falsity and
reasonable litigation expenses. The prospective gain from litigation is not a
windfall; it provides no incentive for frivolous claims.
At the same time, defendants have incentives to resolve the dispute—if
practicable—at the prelitigation stage, further contributing to a reduction in
the incidence of litigation. But the consequences of litigation are not so Draco-
nian as to induce early concessions if they are unwarranted. When a publisher
or a private person believes in the truth of its assertions, it may stand by them
through the course of phase one litigation without facing indeterminate or ex-
cessive liability. Cases involving economic loss pose a greater risk; but that risk
is no different than under present law and, for reasons indicated in Chapter 24,
may be more manageable under the present proposal.
TOO MANY ISSUES TO BE LITIGATED?

Under present doctrine, a defamation suit involving an issue of public concern
may be dismissed at any time if it becomes apparent that plaintiff cannot meet
its burden on any issue. Thus a court may dismiss a claim on the ground that a
plaintiff cannot prove fault without ever reaching the issue of truth or falsity.
Under the proposed procedural reform, the issue of falsity would have to be
adjudicated in any case in which the other elements of an actionable defama-
tion are shown. This will impose an additional burden on the courts and the
parties in at least some instances. On the other hand, courts in many cases will
be able to avoid complex issues of fault, which typically require more trial time
than the issue of falsity. On balance, the burden on the courts and on the parties
will not be enhanced if the dominant issue becomes falsity and the parties have
incentives to resolve that issue expeditiously in prelitigation exchanges or dur-
ing the first phase.
ASYMMETRY IN ALLOCATION OF
RESPONSIBILITY FOR LITIGATION EXPENSES
The proposal provides for recovery of a plaintiff ’s reasonable litigation expenses
from the defendant in some circumstances but makes no provision for recovery
of the defendant’s litigation expenses from unsuccessful plaintiffs. The distinc-
tion stems from the unilateral character of most incidents of defamation.
In the typical case the plaintiff does not invite or incite or contribute to the
defamation. The defamation comes without warning and strikes an unsuspect-
ing victim. In such a case the plaintiff could not avoid the injury by taking any
plausible precautions. But the defendant, having full control of all facets of
publication, can take care to avoid injuring the plaintiff by not publishing state-
ments that are false and defame an identifiable individual. To be sure, there will
be cases in which injuries occur as a result of ignorance or inadvertence: where
the publisher is unaware of the statement’s defamatory connotation or believes
the statement, although defamatory, is true. But by hypothesis the plaintiff is
not the source of the error. The publisher makes the decision as to whether to
publish, and if it decides to go ahead, it also determines how much care to
exercise to avoid a defamatory falsehood. The plaintiff in these cases is in the
same position as a person hit by flying debris from an explosion or by radioac-
tive emissions from a faulty nuclear installation or by water pollutants originat-
ing on defendant’s premises. In all such cases the plaintiff recovers from the
demolition team or the nuclear facility or the polluter without showing fault;1 in
each case the defendant can determine the scope and magnitude of its opera-
tions and the extent of care it should take in light of its inevitable liability for
untoward consequences.
The external benefits associated with the First Amendment preclude the
adoption of a general rule of strict liability in defamation, although that was the
approach at common law and is an approach that may be applied today to
defamations not made during a discussion of an issue of public concern. (The
latter are instances in which external benefits are not a significant factor.) In
effect, plaintiffs injured by constitutionally protected defamations are compelled
to make a contribution to the common good to the extent that their claims are
precluded for failure to satisfy the fault requirements of New York Times and
Gertz. There is nothing intrinsically wrong with this. All of us may be required
from time to time to make sacrifices for the common good. But the sacrifices
should not exceed the needs that give rise to them.
In the case of defamations protected by constitutional privilege, unrestricted
recoveries would inhibit expression in contravention of First Amendment val-
ues. But the same is not true of every requirement imposed on persons who
utter such defamations. Speech is not unduly burdened if a spokesperson, alerted
to an unintended derogatory connotation or to an error as to the truth of a prior
assertion, is compelled to make a correction or a retraction to avoid litigation.
If the spokesperson elects to stand by the original statement after having been
alerted to the dangers, it runs the risk of being proved wrong and subjected to
the restricted remedy of reimbursement of plaintiff ’s reasonable litigation ex-
penses. A defendant is spared the risk of greater liability in the event a defama-
tory falsehood is found, and the plaintiff generally must bear all emotional and
reputational injuries without recompense. The preclusion of greater liability is
a burden inflicted on injured plaintiffs to serve an overriding public interest.
No greater sacrifice is warranted in the case of defamatory falsehoods that

remain uncorrected notwithstanding fair notice of the plaintiff ’s position.
Plaintiffs, of course, may abuse the litigation process, and they should not
escape unscathed if they do. Plaintiffs do not recover litigation expenses for
which they are responsible as a result of miscommunication, lack of coopera-
tion, or unjustified complication or prolongation of ensuing litigation. And if
the abuse rises to a level that would support an award to defendants in accor-
dance with rules applicable to sanctions in civil litigation generally, defendants
should recover some or all of their litigation expenses from plaintiffs. But plain-
tiffs, who are often laypersons, should not be responsible for defendants’ litiga-
tion costs if they proceed in good faith to rectify what they perceive to be a
falsehood impairing reputation. In most cases the plaintiffs’ best prospect is
breaking even, since they never get more than litigation expenses absent eco-
nomic loss or a prolongation of the litigation into the second phase. Further
deterrents to suit are not justified and should be rejected.
CURTAILMENT OF RECOVERIES BY SUCCESSFUL PLAINTIFFS

Under prevailing constitutional doctrine, defamation plaintiffs are compelled to
forgo most damage claims to advance a public good. Since plaintiffs prevail so
infrequently under the current regime, the proposed procedural reform cannot
undermine a great many recoveries. But there are cases under the present law in
which plaintiffs, having proved actual malice, can recover for reputational harm,
emotional distress, and even punitive damages—all without showing economic
loss.
Such recoveries are not permitted under the proposed reform unless the
litigation is prolonged into the second phase. Such prolongation is avoidable in
most cases; defendants have an incentive to litigate the truth or falsity of their
assertions in the first phase. In such cases a sacrifice is imposed on plaintiffs to
promote the common good. But the sacrifice is imposed in a context that
provides plaintiffs with what they seek most: an opportunity to clear their names
and vindicate their reputations. The mandated exchange is a fair one: it gives all
plaintiffs a realistic opportunity to achieve their primary objective while depriv-
ing a small minority of plaintiffs of an opportunity to achieve potentially large
recoveries that, in the absence of economic loss, are not of comparable impor-
tance and in any case are highly speculative.
UNDUE IMPAIRMENT OF FREE SPEECH?

Most important, there is no reason to expect that the proposed reform would result
in impairment of free speech. At worst, media and spokespersons are confronted
with liability no greater than the liability they now confront. In most instances the
media are accorded substantial protection. In exchange for this protection, the
proposal calls for corrections and retractions when justified by the underlying
facts and for litigation of the issue of falsity when that issue is fairly raised and
is not subject to resolution short of litigation. Even in the latter case the media,
if found to be in error, sustain no loss greater than plaintiff ’s reasonable litiga-
tion expenses in the first phase. As in the case of plaintiffs, defendants achieve
their primary objective—avoidance of the specter of massive liability and ex-
pensive and intrusive inquiries into fault. In exchange, they must correct error,
if shown to exist, and reimburse plaintiffs for reasonable litigation expenses on
the issue of falsity if the defendant insists on a trial and loses on the merits.
Media representatives are concerned that litigious public figures will use
defamation actions to deflect media attention and criticism. That concern is
well-grounded, and the proposed reform is responsive. It provides a low-cost
and low-risk means of correcting unwitting error. Genuine disputes as to under-
lying facts can be resolved in trials of limited scope and limited consequences.
Substantial liability is incurred only if a plaintiff prevails on both falsity and
fault. Absent economic loss, the present proposal provides substantially more
protection than existing law. If economic loss is shown, the media’s maximum
liability under the proposal is no greater than under existing law and may be less
under certain circumstances (for example, when a defendant is prepared to
concede falsity). Further, the initiation of litigation in bad faith results in the
disallowance of plaintiff ’s litigation expenses and the possible imposition of
sanctions on the plaintiff, permitting recovery by the defendant of litigation
expenses reasonably incurred.
TRUTH AS AN ISSUE IN LITIGATION

The proposed procedural reform seeks to focus on the truth or falsity of the
alleged defamation, once actionability on other grounds is shown, rather than
on the fault of the publisher—reducing the number of instances in which the
issue of fault must be litigated. But this proposed focus on truth may be met
with the argument that truth is elusive, that propositions can be advanced only
with a degree of uncertainty and may have to be reconsidered in the future in
light of further developments. Accordingly, so the argument goes, it is inappro-
priate—and indeed incompatible with the nature of the search for truth—to
have a government agency act as the final arbiter of truth, with authority to
issue definitive rulings that a proposition is true or false.2
The point is valid but overstated. First, life could not go forward without at
least provisional determinations as to truth—for example, that some substances
are poisonous to humans while others may be ingested without ill effect. Such
judgments may be proved erroneous as a result of further inquiry, but that does
not obviate the need to make judgments in the here and now. Humans cannot
survive without ingesting some substances, so determinations as to good or bad
effects cannot be held in abeyance indefinitely. Whole bodies of law—including
product liability, occupational safety, regulation of drugs, and environmental
protection—are premised on determinations, which may turn out to be false,
about the way the world works. Yet widely shared factual assumptions are ac-
cepted without significant dissent.
So, too, with defamation. Most litigated cases concern statements that can
be shown to be true or false with a high degree of certainty. Was the plaintiff
arrested for rape, or was it someone else? Did the plaintiff take bribes, or is he
innocent? Does plaintiff ’s product emit toxic fumes, or are the emissions in-
nocuous? Questions of this character are the staple of multifarious types of
litigation, and nothing about them signals special problems for the law of defa-
mation. A provisional answer can be provided—solely for the purpose of re-
solving the litigation at hand—without venturing into uncharted waters in an
open-ended search for truth.
Yet other cases do not lend themselves to definitive resolutions. Uncertain-
ties about what happened (for example, at the Kennedy assassination) or what
will happen (for example, in the case of global warming) may be the subject of
continuing debate for which even provisional answers must be given with a
recognition of their limitations. Most such propositions are likely to be irrel-
evant to any well-grounded claim of defamation—because the content of the
statement is not defamatory, or because the defamation does not pertain to an
identifiable person, or because the statement is nonactionable opinion, inca-
pable of proof as to truth or falsity. Nonetheless, some statements that may be
difficult to prove or disprove do constitute actionable defamation.
To say that General Sharon acquiesced in the slaughter of refugees in a
camp in Lebanon is slanderous.3 To say that General Westmoreland concealed
from his superiors and from the American public the true strength of the enemy
in Vietnam is also actionable defamation.4 But the truth as regards the underly-
ing facts may be almost impossible to uncover. General Sharon obtained a jury
verdict that the slander against him was false. The Westmoreland litigation was
discontinued—after an extensive excursion into the history of military intelli-
gence in Vietnam—without a resolution as to truth or falsity. Can these cases of
undispelled uncertainty be resolved in the context of defamation litigation?
The answer is a qualified yes. The critical point is a recognition that one
can reach any of three determinations as to any proposition of fact: (1) that it is
probably true in light of the evidence at hand, (2) that it is probably false in light
of the evidence at hand, or (3) that it cannot be adjudged true or false in light of
the evidence at hand. The proposed procedural reform already addresses the
first two of these possible resolutions. How to deal with the third? Under Hepps,
a plaintiff cannot succeed in a defamation case involving a media discussion of
an issue of public concern without proving falsity; accordingly, plaintiffs will
lose in cases that fall under the third heading (see Chapter 18). But as indicated
in the discussion of Hepps, that resolution is not entirely satisfactory. It leaves
a defamed individual without a remedy if a defendant levels a charge of wrong-
doing on the most speculative premises if the plaintiff cannot effectively refute
it. The appropriate response is to provide a remedy that tells the truth about the
speculative accusation: “Not proved.” The proposed procedural reform could
incorporate such a remedy without major revision and without any departure
from prevailing substantive principles. In such cases resolutions at each stage
should be these:
1. At the prelitigation phase, in response to a demand for retraction or correction,
the publisher could stand by its assertion but concede that the assertion cannot
be substantiated. This is an unlikely outcome, but it is a possibility. Arguably,
this was the circumstance in the Sharon and the Westmoreland litigations.
2. At the conclusion of the first phase, a trier of fact could conclude that the
plaintiff had not proved falsity but that the defendant had been unable to
substantiate its charge. At that point a judgment of “Not proved” should be
entered. Neither party would recover attorneys’ fees from the other absent
misconduct by a party during the proceedings.
3. The second phase would not occur or would result in judgment for the
defendant except for a determination of “Not proved.” Plaintiff would recover
neither damages—even for economic loss—nor attorneys’ fees. Some may
consider this an unjust outcome. But such is the teaching of Hepps. This aspect
of the proposed procedural reform provides plaintiffs with some redress in the
face of Hepps. Further redress requires that Hepps be reconsidered, a possible but
highly improbable development.
In sum, the elusive character of truth should be recognized and an appro-

priate response should be fashioned in the development of an effective proce-
dural solution. But the problem, properly understood, is not a basis for paraly-
sis in coping with defamation. Plaintiffs can obtain declarations of falsity in
many cases, and even in cases in which the truth is unknowable given the
evidence at hand, plaintiffs are entitled to a judicial declaration to the effect that
the alleged defamation has not been substantiated.
T W E N T Y - S I X
PATHS NOT TAKEN
T O E VA L U AT E T H E S O U N D N E S S O F T H E P R O P O S A L S made in Part Four, we

must consider paths not taken. At the one extreme, the press seeks total immu-
nity from liability for defamation. At the other extreme, some advocate restora-
tion of the law of defamation as it developed under the common law, rejecting
New York Times Co. v. Sullivan. Two significant intermediate positions are (1)
adopting a policy of immunity for the press but compensating the innocent
victims of defamatory attack with monetary awards from the public fisc, and (2)
curtailing New York Times to public officials and candidates for public office,
rejecting constitutional privilege in all other defamation cases.
PRESS IMMUNITY
As noted at the outset, representatives of the press have sought complete immu-
nity from the law of defamation as the only acceptable response to their First
Amendment concerns.1 Their demand will not be adopted—and with good
reason. No one familiar with the ravages wrought by the media would unleash
a force so destructive without imposing some measure of accountability.
For example, in Ocala Star-Banner Co. v. Damron,2 discussed in Chapter 5,
Leonard Damron operated a garage in Crystal River, Florida; he was mayor of
the town and a candidate for county assessor. The Star-Banner reported that
Leonard Damron had been charged with perjury in a federal civil rights action,
when in fact it was James Damron (Leonard’s brother) who had been charged.
Leonard Damron lost the election and claimed his business had been injured; a
jury awarded him $22,000 in compensatory damages. The newspaper attrib-
PAT H S N O T TA K E N 181
uted the mistake to a “mental aberration” by one of its editors who had worked
for the paper only for a month. The Supreme Court set aside the verdict in
Damron’s favor because the issue of actual malice had not been submitted to
the jury. Damron is not alone. Other litigated cases have reported instances in
which prominent persons have been accused of crimes or of other wrongdoing
premised on reports involving someone with the same last name.3 Have these
journalists never seen a telephone book? How bright or conscientious do you
have to be to grasp the point that the same last name may refer to more than
one individual?
In KARK-TV v. Simon,4 a television reporter appeared on the scene of a
reported robbery. She saw Andre Simon and Barry Smith being taken into
custody. The incident was filmed and later broadcast with a report about how
the police had stopped a robbery attempt: “[I]t appears two suspects backed
their car up to the store in order to rob it. For a time, the two men allegedly
held a store clerk hostage.”5 In fact, there had been no robbery attempt and no
taking of a hostage; the story had been based on fragmentary reports heard over
a police scanner, reports the police and the storeowner declined to corroborate.
The improperly identified “suspects” recovered $12,500 each in compensatory
damages, an award sustained under Gertz on proof of the station’s negligence.
Again, KARK-TV is not alone. The landscape is littered with false reports of
crimes, teenage pregnancies, child abuse, and other injurious falsehoods im-
pugning the reputations of innocent persons.6
Some insights into the workings of the press may be gleaned from Brewer v.
Memphis Publishing Co.,7 discussed in Chapter 8. What was the basis for the
report that Anita Wood had engaged in a romantic tryst with Elvis Presley in
Las Vegas? A sales clerk at the Las Vegas Hilton dress shop had told one Ann
Otis that a woman in her shop had said she was Anita Wood and that she was in
Las Vegas to see the Elvis Presley show. Otis reported the story to her brother,
James Kingsley, a reporter for the Memphis Times. No one had verified that
Wood was in Las Vegas at the relevant time, and, more important, neither the
sales clerk nor anyone else had suggested that Wood had met with Elvis Presley
for a romantic rendezvous or for any other purpose. Under a newspaper policy
seeking more stories on local personalities, Kingsley reported the imagined
“reunion” of the two former lovers on a speculation derived from nothing more
than a possible lead.
What was the basis for the report that Anita Wood’s marriage to John
Brewer had ended in divorce? Kingsley had thought the two were divorced and
had sought to obtain confirmation. He asked two coworkers. One knew noth-
ing; the other had heard that the two were separated. Kingsley went ahead with
the story. On this preposterous foundation, a major city newspaper reported

that a married woman had a romantic meeting with Elvis Presley and that her
present marriage had ended in divorce. As previously noted, the Brewers lost
because they were found to be public figures. Although they could show obvi-
ously irresponsible behavior by the Memphis Times, the court ruled that they
had not shown actual malice.
The transgressions of the press in fabricating stories, staging events, and
otherwise engaging in irresponsible behavior are legion.8 The press has neither
the conscience nor the competence to be accorded total immunity in its assaults
on individual reputations. (Interestingly, the liability of the press in Damron,
KARK-TV, and Brewer would not have been enlarged under the proposals made
in this book. Timely retractions had been made in Damron and in Brewer. The
KARK-TV opinion made no reference to a retraction.)
But the problem is broader in scope. The press does not have a monopoly
on free speech. What about private individuals exercising their rights under the
First Amendment? In addition to the atrocities already reported under “Purely
Private Labels” (Chapter 14), consider Rety v. Green,9 discussed in Chapter 1,
in which a false and defamatory statement spread by a private person ruined the
economic and personal life of a restaurateur. Can we decide the press cases
differently from Rety v. Green? No sound basis appears to exist for doing so.
After all, Green was doing his best to emulate the press; if he had had access to
a microphone or a newspaper, he almost certainly would have used it. Further,
Green’s hateful message arguably involved an issue of public concern—anti-
Jewish bias manifested by the owner of a place of public accommodation—
although the Florida court did not see it that way. The same story, motivated by
the same purposes, could have been published in a newspaper or broadcast over
the air with precisely the same consequences.
The historical basis for the First Amendment encompasses pamphleteers
as well as publishers. Green was a pamphleteer. If the press is to be given
complete immunity from defamation, the same protection must be accorded
Green. To insulate Green from liability—or the press under similar circum-
stances—would expose countless innocent persons to serious harm, deliber-
ately inflicted, without opportunity for meaningful redress.
RETRENCHMENT TO THE COMMON LAW POSITION

Considering the excesses of the press and of others exercising First Amend-
ment rights, one may yearn for a return to the rigors of the common law of
defamation. From the founding of the republic to 1964, the common law gov-
erned almost all defamation litigation in the United States without detracting
from the vigor of press coverage. No one who had lived through the Great
Depression, World War II, Korea, the McCarthy era, and the early civil-rights
movement could believe the United States had a timid press in those years. The
law of defamation as it existed at the time attracted no serious criticism from
the media or the public.
Nor was a radical new direction required by the facts of New York Times
Co. v. Sullivan. Considering the history of seditious libel in the early days of the
nation, the Supreme Court was on firm ground in refusing to allow defamation
actions premised on criticism of government. The novel feature of Sullivan’s
claim, properly repudiated, was his effort to transmute a criticism of govern-
ment into a personal criticism and then sue for the personal affront. The case
could have been resolved on the ground, reiterated in Rosenblatt, that individual
government officials not named or otherwise identified in an alleged defama-
tion are barred from suing for criticisms of the government agencies in which
they serve (see Chapters 2 and 6). On this branch of the case, the result is one
of complete immunity for the critic. No case has been found in which the press
has been held accountable, on the basis of actual malice or otherwise, where the
alleged defamation was directed solely at government actions and policies and
did not target identifiable individuals.
But subsequent developments support New York Times as a wise and pru-
dent decision. The incidence of defamation litigation has risen dramatically
since 1964, notwithstanding the protection of constitutional privilege; and dam-
age awards have increased markedly. Further, litigation by “sensitive” plain-
tiffs—seeking to protect commercial or ideological interests—poses a serious
threat to journalists and other critics attempting to expose impropriety and
overreaching. The First Amendment requires that limits be imposed on those
seeking to suppress criticism by threats of ruinous lawsuits. Finally, the experi-
ence of events overseas—the use of libel laws to suppress critics of a prevailing
regime—cannot be ignored. To be sure, the United States has an independent
judiciary that might be expected to guard against such perversions of justice.
But the potential for abuse remains, and safeguards are required to protect
against potential as well as present dangers.
As noted at the outset of the book, an analysis of externalities supports the
general thrust of constitutional privilege, although it may not define its precise
parameters. When journalists uncover abuses by government officials, as in
Watergate, or bring home the true dimensions of a national tragedy, as in the
case of Vietnam, or expose the manifold injustices of racism or report on
threats to human safety or the environment, they perform an enormously valu-
able public service. They derive some gain from their reports—in increased
circulation of their publications or programs or in prestige within their profes-

sion and in the community at large. But they cannot capture the entire benefit.
The bulk of the benefit is derived by the public—spared the oppression of
tyrants, the agonies of an unjust war, the injustices of racism, and the ravaging
of human health and the environment. Yet the press (and outspoken private
citizens), incapable of capturing all of the gain, must bear the totality of loss in
the event of actionable defamation—both the expenses of litigation and the
potential for ruinous liability. To rectify the imbalance and ensure that the in-
centives for disclosure are not unduly impaired by the threat of liability, consti-
tutional privilege is an essential feature of First Amendment jurisprudence.
New York Times may not have been needed when it was decided in 1964.
But almost everyone concedes that it is necessary today.
PUBLIC COMPENSATION FOR VICTIMS OF DEFAMATION

Recognizing the merits of the externality position, Professor Frederick Schauer
has urged immunity for the press joined with a system of public compensation
for innocent victims of defamatory attacks.10 In line with the argument made
previously, the victims’ reputations have been sacrificed to achieve a more impor-
tant public good—a vigorous and unintimidated press. Since the general public
derives most of the benefit accruing from constitutional privilege, the public
should compensate those whose reputations have been sacrificed for its sake.
The proposal is impracticable and unwise. On practicality, no one could
imagine that Congress or the state legislatures would earmark public funds to
compensate defamation victims. The Constitution already contains a provi-
sion, analogous to the proposal under discussion, requiring governments to
compensate persons when private property is taken for public purposes.11 De-
spite this explicit constitutional command, legislators and administrators bend
every effort to extract valuable property from private persons without compensa-
tion to serve some overriding public purpose—for example, protecting the en-
vironment, preserving historic landmarks, subsidizing tenants in rent-controlled
apartments.12 If the government will not protect a shepherd whose sheep are
devoured by governmentally protected grizzlies13 or a property owner whose
land is condemned to idleness by environmental constraints,14 surely it will not
underwrite injuries sustained by innocent victims of defamation.
The compensation proposal also is unwise. Since compensation would be
paid from the public fisc, the media and other spokespersons would have a
diminished incentive to curb unjustified defamatory attacks. The excesses in
Damron, KARK-TV, Brewer, and Rety might continue unchecked. The remedy,
whatever it may be, has to be brought home to the party uttering the defama-
tion. Further, public compensation offers the wrong remedy at far too high a
price. Victims of defamation are not primarily concerned about monetary com-
pensation; they want to clear their names. Redress by way of public compensa-
tion would be very expensive (if adequate compensation ever were made), and
it would come far too late to be of value in vindicating reputation.
By contrast, the procedural reforms advocated in Part Four bring the of-
fense of the defamatory utterance home to the offender, in most instances in a
nonruinous manner. Prospects are good for prompt resolution of the matter.
And no radical new government spending plans are envisaged. Indeed, if the
proposal works as anticipated, the burden on the public treasury will be dimin-
ished by reducing the number and complexity of defamation cases.
CURTAILING CONSTITUTIONAL PRIVILEGE

Another proposal, less drastic in its sweep, would nonetheless significantly re-
duce the scope of constitutional privilege. Professor Vincent Blasi has asserted
that constitutional privilege should be available only to critics of public officials
and of candidates for public office.15 The argument is that the main objective of
constitutional privilege should be to repudiate seditious libel and facilitate criti-
cism of government to curb abuses of authority. That is indeed a major purpose
of the First Amendment and one pursued vigorously in this book—which urges
a broader sweep for the actual malice rule in reaching instances of government
beneficiaries (like Hutchinson) and government targets (such as Wolston).
Moreover, the book is in accord with this point of view in rejecting the
application of constitutional privilege in cases like Butts and Brewer where no
public issue is in dispute and the actual malice rule is invoked simply because
the party defamed happens to be a prominent personality or a celebrity. First
Amendment expressive values are not impaired if these persons are accorded
the same defamation protection as everyone else.
The main point of contention is the person who becomes a “public figure”
by taking a prominent position on a public issue or otherwise seeking to influ-
ence the outcome of that issue. Since such persons do not wield the authority of
government, the argument goes, criticisms of them need not be sheltered to the
same extent as criticisms of public officials. Public officials are a menace; pri-
vate spokespersons do not stand on the same footing. Granted that the position
has some merit, the distinction cannot be drawn so sharply.
First, not all public officials are vested with great power. If a dogcatcher is
elected, he is a public official under the law as it now stands. Under the propos-
als set forth in this book, all persons in the government bureaucracy are public
officials to the extent they are criticized concerning the conduct of their public
functions. (Superior officials would be subject to broader scrutiny, reaching

anything bearing on their fitness to hold office.) For reasons developed in the
earlier discussion, it is essential that all members of the bureaucracy be subject to
public scrutiny and criticism as regards their official conduct (see Chapter 6).
Second, private persons can be as serious a menace to the public as govern-
ment officials, in part because they are not held accountable by means of public
processes such as elections, appointments, and appropriations. Consider, for
example, an incipient totalitarian movement. To expose an incumbent demo-
cratic regime to criticism with minimal redress in defamation while allowing
unconstrained access to defamation actions by the enemies of democracy would
be a travesty. The time to stop Nazis and Fascists and other totalitarian move-
ments is before they ascend to the reins of government. Unfettered critiques are
essential. Afterward may be too late. If a regime governs by brute force, the
contours of the law of defamation are not likely to be relevant.
But the public danger is not simply prospective tyrants seeking to seize
government power. Powerful forces often work behind the scenes—corrupting
the political process, endangering public health and safety, and perpetrating
racist or sexist policies. Senator Joe McCarthy, in his rabid and irresponsible
Red-baiting, never came close to capturing the Senate, let alone the powers of
the other branches of government. But the corrosive effects of his accusations,
and those of his sympathizers in the private sector, inflicted harm on many
persons both inside and outside government—such as John Henry Faulk, dis-
cussed in Chapter 1.16 Neither McCarthy nor other Red-baiters should be per-
mitted to curb criticism of their misdeeds through unrestricted recourse to
defamation litigation. Of course, Senator McCarthy could be criticized under
the shelter of constitutional privilege because he was a public official. But should
private persons be enabled to implement industry blacklists having a far wider
impact armed with the power to curb critics by recourse to defamation?
The government is not the totality of society and may not even be the most
important part. Prohibitions against racial and religious and sex discrimination
did not spring full grown from the legislative bosom. It took years of criticism
in the press and elsewhere, directed at private entities as well as the govern-
ment, to bring home to the public a realization of the enormity of the evils
being perpetrated. Some protection was warranted then, and is warranted now,
to prevent the use of defamation actions to intimidate critics of the status quo.
To be sure, constitutional privilege is not a single undifferentiated mass.
The actual malice rule protects critics of public officials and public figures,
instances calling for the highest degree of protection. Gertz provides more lim-
ited protection for criticisms of private persons in connection with discussions
of public issues by requiring a showing of negligence and limiting recoverable

damages (and, under Hepps, by requiring proof of falsity). Even so, the distinc-
tions are apt to be arbitrary at the margins.
Consider, for example, a story exposing safety problems on buses used to
transport children to school. If the buses are operated by a public-school system
and the allegedly guilty parties are school administrators, the story is clearly
protected by a requirement of actual malice. If the bus service is provided by an
unregulated consortium of parents for their own children, any allegedly way-
ward parents would be private persons, and the story would be protected by the
negligence rule of Gertz. If the buses are operated by a private firm, under
contract with the school authority and possibly subject to public regulation,
either New York Times or Gertz might apply to an action brought by the private
firm, depending on how a court unravels the knotty problems associated with
defamation actions brought by business enterprises.
Problems at the margin are a good reason not to rely solely on substantive
law reform. Under the procedural reform suggested, the defamed person—
whether school official, parent, or private contractor—could seek a retraction
and, failing that, an adjudication as to truth or falsity. No determination is
required as to the person’s status. And if the critic acts responsibly in the face of
error, correction can be made without significant jeopardy to the financial
resources of the critic, whether the press or a private citizen.
T H E P R O B L E M , I N S H O R T , is too complex to yield to any single solution. Revi-

sion and clarification of substantive law principles are warranted, and recom-
mendations to that effect have been made at various points in this book. But
procedural reform is more important. If implemented without undue formality
and complexity, the procedures recommended offer substantial promise that
the victims of unjust defamations will get what they want most—an opportunity
to clear their names—without subjecting media and nonmedia critics to risks
of ruinous loss. Compensation is provided for economic loss, and here the
substantive principles will continue to be significant. But economic loss can
normally be foreseen; critics can exercise greater prudence in avoiding error in
this potentially vulnerable domain; and timely retraction or correction, when
warranted, should serve as a brake on escalations of economic loss.
The problems in this area are difficult but not insoluble. The courts, led by the
Supreme Court, could achieve a more effective and more just reconciliation of
the conflicting demands of the First Amendment and the law of defamation.
P A R T F I V E
PRIVACY AND
THE PRESS
190 P R I VA C Y A N D T H E P R E S S
T H E R I G H T T O P R I VA C Y 191
T W E N T Y - S E V E N
THE RIGHT TO PRIVACY
I N 1890 S A M U E L D. W A R R E N A N D L O U I S D. B R A N D E I S published their

pathbreaking article The Right to Privacy.1 They relied primarily on common
law cases affording authors and artists protection against unauthorized dissemi-
nations of private writings and of artistic representations not placed on public
display.2 These rulings, they argued, were mere instances of the enforcement of
the more general right to be let alone. . . . The principle which protects personal
writings [is] that of an inviolate personality. [If ] the decisions indicate a general right
to privacy for thoughts, emotions, and sensations, these should receive the same
protection, whether expressed in writing, or in conduct, in conversation, in attitudes
or in facial expression. . . . The right of one who has remained a private individual, to
prevent his public portraiture, presents the simplest case for [extension of protection;]
the right to protect one’s self from pen portraiture, from a discussion by the press
of one’s private affairs, would be a more important and far-reaching one.3
The need to recognize a more general right to privacy was traced to ad-
vances in technology and to new business methods: “Instantaneous photographs
and newspaper enterprise have invaded the sacred precincts of private and
domestic life; and numerous mechanical devices threaten to make good the
prediction that ‘what is whispered in the closet shall be proclaimed from the
house-tops.’ For years there has been a feeling that the law must afford some
remedy for the unauthorized circulation of portraits of private persons.”4
Even so, Warren and Brandeis recognized important limits on the right to
privacy: (1) “publication of matter which is of public or general interest,” (2)
publication subject to a common law privilege, and (3) publication of facts
already publicized by an individual or published with his consent.5 The right to

privacy should not impede these types of publications.
The first significant test of the Warren-Brandeis thesis occurred in New
York. A flour manufacturer obtained a likeness of a pretty young girl, Abigail
Roberson, without her consent. Posters advertising the manufacturer’s product,
bearing the legends “Flour of the Family” and “Franklin Mills Flour,” featured
Roberson’s portrait. Around 25,000 posters found their way into numerous
stores, warehouses, and saloons. Roberson was deeply offended by the intru-
sion on her privacy and relied on the Warren-Brandeis article in seeking re-
dress. In a 1902 ruling a closely divided New York court rejected the suit.6 It
refused to recognize a new cause of action for invasion of privacy.
The right to privacy fared better in Georgia. Paolo Pavesich was an artist of
no particular renown. His picture had been included without his consent in a
newspaper advertisement for life insurance. The ad depicted him as a person
who had been smart enough to purchase life insurance as a young man. Beneath
the picture ran the caption “In my healthy and productive period of life I
bought insurance in the New England Mutual Life Insurance Co. . . . and today
my family is protected and I am drawing an annual dividend on my paid-up
policies.” His picture appeared next to the likeness of an ill-dressed and sickly-
looking man who had realized too late his mistake in not obtaining insurance.7
On suit by Pavesich for intrusion on privacy, the Supreme Court of Georgia in
1905 accorded recognition to the right—the first appellate court to do so. At
least as far as commercial advertisements were concerned, a private person had
a “right to be let alone.”8
Soon thereafter, the New York legislature repudiated Roberson and in 1909
enacted a statute providing that one “who uses for advertising purposes, or for
the purposes of trade, the name, portrait or picture of any living person without
first having obtained written consent of such person . . . is guilty of a misde-
meanor.” In addition to criminal sanctions, the person offended was empow-
ered to seek injunctive relief and compensatory and punitive damages.9 In one
form or another, this aspect of the right to privacy is now recognized in virtually
all U.S. jurisdictions.
T H E R I G H T T O P R I VA C Y , H O W E V E R , is more extensive than this ban on the

appropriation of individual personalities for commercial exploitation without
their consent. In Chapter 21 another branch—false light privacy—was dis-
cussed in some detail. Two other aspects of the right to privacy are significant.
They are summarized in these terms in the Restatement of Torts:
T H E R I G H T T O P R I VA C Y 193
Seclusion10—One who intentionally intrudes, physically or otherwise, on 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.
The right to seclusion affords protection against spying on private premises and
against such practices as eavesdropping, wiretapping, and interfering with pri-
vate papers and correspondence. Numerous statutes define and implement this
aspect of the right to privacy.
Publication of Private Facts11—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 (1) would be highly offensive
to a reasonable person and (2) is not of legitimate concern to the public.
This provision goes to the heart of the Warren-Brandeis thesis. Its dimensions
are explored in Chapters 28 and 29.
Although most states recognize all four aspects of the right to privacy, there
are exceptions and qualifications. New York, for example, follows the statute
prohibiting commercial appropriation absent consent, but it declines to recog-
nize the other three aspects of the right to privacy.
T H E P O L I C I E S U N D E R LY I N G C O M M E R C I A L A P P R O P R I AT I O N and false light pose

no great difficulties. In each instance an element of falsity is involved in
defendant’s representation, either of association (under commercial appropria-
tion) or of characterization (under false light). The plaintiff ’s claim is essentially
a right to autonomy—to be depicted to the world as he or she truly is—without
false attributions of association or character.
But intrusions on seclusion and private-fact disclosure are not concerned
with falsity. Their objective is to suppress the truth. Why should the law assist
persons seeking to suppress the truth? In some instances the uncovering and
revelation of true facts may be beneficial to those who come in contact with the
plaintiff, revealing his infection with a contagious disease or his record of dis-
honesty in prior personal or business dealings. Some special latitude may be
appropriate in enabling disclosures in such cases. But most personal informa-
tion has no social significance, revealing embarrassing moments or disclosing
intrinsic characteristics—for example, illegitimate birth, homosexual prefer-
ence, affliction with any number of noncontagious diseases or disabilities—that
may expose the plaintiff to irrational discrimination. Further, an awareness of
possible disclosure may deprive persons of much of the intimacy and spontane-
ity that make life most enjoyable. Who wants to spend his or her life in the eye
of a video camera that captures every gesture, comment, and expression of

emotion, to be reported to any number of persons at any time? The simple fact
is that almost everyone values privacy. People differ only in the aspects of their
lives about which they choose to be secretive and the importance they attach to
maintaining a barrier to exposure.12
In 1977 the U.S. Supreme Court observed that the constitutionally pro-
tected zone of privacy involves two different kinds of interests: “One is the
individual interest in avoiding disclosure of personal matters, and another is the
interest in independence in making certain kinds of decisions.”13 Under the
latter heading is the claim that persons in their intimate and familial relations
should be allowed to shape their lives without outside interference. This aspect
of the right to privacy is at the heart of struggles about a woman’s right to have
an abortion, a person’s right to pursue a homosexual lifestyle, and parents’ right
to raise their children in accordance with their religious faith. This aspect of the
law of privacy—concerned principally with opposition to government intrusion
and control—is not addressed in this book.
Even as regards informational privacy, the book is concerned primarily
with intrusions by private persons. The government, as a potential “Big Brother,”
may be a fearful prospect, but that prospect is not the principal focus of this
work. The emphasis here is on the intermeddling of private persons—seeking
to ferret out personal information or giving publicity to personal information in
a manner, or to an extent, that persons find offensive.
Of course, the two aspects of the right to privacy are not unrelated. A
person’s freedom of action may be inhibited if every move he makes can be
monitored and disclosed to others; that may be a good reason for restricting
certain types of monitoring and disclosure. But the focus here is on the conduct
of private persons engaged in objectionable monitoring and disclosure, whether
the impact is simply embarrassment or goes further and engenders unwarranted
inhibitions on an individual’s freedom of action.14
T W E N T Y - E I G H T
GENIUS, HERO, MAVERICK, THREAT
W I L L I A M S I D I S WA S A FA M O U S C H I L D P R O D I G Y . At age eleven he lectured to

distinguished mathematicians on the subject of Four-Dimensional Bodies. When
he was sixteen, he graduated from Harvard College amid considerable public at-
tention. After 1910 his name appeared in the newspapers only sporadically, and he
sought to live as unobtrusively as possible. In a 1937 article entitled “April Fool,”
New Yorker magazine published a story recounting Sidis’s early accomplishments
and discussing the former prodigy’s later life. It told of Sidis’s efforts to conceal his
identity, his choice of a career as an insignificant clerk having no need for un-
usual mathematical talents, and his enthusiasm for collecting streetcar transfers
and learning the lore of the Okanakammessett Indians. The article described
Sidis’s present lodgings (“a hall bedroom of Boston’s shabby south end”), the
untidiness of his room, his curious laugh, his manner of speech, and other per-
sonal habits. The article’s title stemmed from a Sidis comment that he had been
born on April Fool’s Day. It was accompanied by a cartoon showing a child
genius lecturing to a group of astounded professors.1
On Sidis’s suit for invasion of privacy, the U.S. Court of Appeals for the
Second Circuit described the New Yorker article as
merciless in its dissection of intimate details of its subject’s personal life, and this in
company with elaborate accounts of Sidis’ passion for privacy and the pitiable
length he has gone to to avoid public scrutiny. The work possesses great reader
interest, for it is both amusing and instructive; but it may fairly be described as a
ruthless exposure of a once public character, who has since sought and has now
been deprived of the seclusion of private life.2
Even so, the court of appeals rejected Sidis’s claim. He had achieved, or
had thrust upon him, the status of a “public figure.” He subsequently had sought
to cloak himself in obscurity, “but his subsequent history, [responsive] to the
question of whether or not he had fulfilled his early promise, was still a matter
of public concern. The article . . . sketched the life of an unusual personality,
and it possessed considerable popular appeal.”3
The court was not prepared to say that newsworthiness would always con-
stitute a defense: “Revelations may be so intimate and so unwarranted in view
of the victim’s position as to outrage the community’s notion of decency. But
when focused on public characters, truthful comments upon dress, speech, habits,
and the ordinary aspects of personality will usually not transgress this line.”4
O N S E P T E M B E R 22, 1975, I N S A N F R A N C I S C O , Sara Jane Moore at-

tempted to assassinate President Gerald Ford. Oliver Sipple, present in the
crowd greeting the president, grabbed or struck Moore’s arm as she was about
to fire the gun. Sipple may well have saved the president’s life. In any case, the
assassination attempt failed, and Sipple was viewed as a hero for his selfless
action. He received significant publicity throughout the nation. Many of the
stories mentioned that Sipple was a prominent member of the San Francisco
gay community and speculated that President Ford’s failure to thank Sipple
promptly was a result of Sipple’s sexual orientation.5
Sipple sued for public disclosure of private facts, arguing that his parents,
brothers, and sisters had not been aware that he was gay and that as a result of
the media disclosures, he had been abandoned by his family and subjected to
embarrassment and humiliation. Writing in 1984, a California appellate court
rejected Sipple’s claim on two grounds.
First, the published facts were not private. Sipple’s homosexual orientation
and participation in gay-community activities had been known by hundreds of
people in a number of cities. He had marched in gay parades, frequented ho-
mosexual gatherings, and participated in gay politics. Sipple “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.”6
Second, the publication was newsworthy. Given the widespread knowledge
of Sipple’s homosexuality, the publication was not so offensive as to “shock the
community notions of decency.”
Moreover and perhaps even more to the point, the record shows that the publica-
tions 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
G E N I U S , H E R O , M AV E R I C K , T H R E AT 197
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.7
That Sipple did not voluntarily seek the limelight was held to be irrelevant.
By his actions, he became “news.”8
M I C H A E L V I R G I L E N G A G E D I N B O D Y S U R F I N G at the “Wedge,” a public beach

near Newport Beach, California. The beach was reputed to be the world’s most
dangerous site for body surfing, and Virgil was acknowledged to be the greatest
daredevil of them all. Sports Illustrated wrote an article about body surfing and
focused on Virgil. In addition to two photographs of Virgil at the Wedge, the
article recounted numerous details about the surfer’s life, which Virgil had pro-
vided to a Sports Illustrated reporter: for example, that Virgil had once extinguished
a lit cigarette in his mouth, that he had eaten spiders and other insects, that he had
dived headfirst down a flight of stairs, and that he had never learned to read.9
When Virgil learned that the story was not to be limited to his surfing
prowess, he revoked his consent to publication of private facts about his life. A
U.S. court of appeals ruled that as to private facts, Virgil’s revocation was timely
and effective. Facts otherwise private do not become public simply because
they are communicated to another person, not even a reporter. By contrast, the
magazine could freely publish the photographs of Virgil taken in public view.10
As regards private facts, individuals are not “free to pry into the unnews-
worthy private affairs of their fellowmen,” and if the public has no right to
know, the press has no “constitutional right to inquire and to inform.” Whether
a matter is of legitimate public concern depends on
the customs and conventions of the community . . . [it is] a matter of the commu-
nity mores.
The line is to be drawn when the publicity ceases to be the giving of informa-
tion 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.11
Viewing this standard as one required by the First Amendment, the court
remanded the proceeding to determine whether the Sports Illustrated article
about Virgil had crossed the line. Even if the public had a legitimate interest in
a particular activity, such as body surfing at the Wedge, “it does not necessarily
follow that it is in the public interest to know private facts about the persons
who engage in that activity.”12
On remand, the U.S. district court entered summary judgment for Sports
Illustrated:
[B]ody surfing at the Wedge is a matter of legitimate public interest, and it cannot
be doubted that Mike Virgil’s unique prowess at the same is also of legitimate
public interest. Any reasonable person . . . would have to conclude that the
personal facts concerning Mike Virgil were included as a legitimate journalistic
attempt to explain Virgil’s extremely dangerous style of body surfing at the
Wedge. . . . The [challenged] facts are generally unflattering and perhaps embar-
rassing, but they are simply not offensive to the degree of morbidity or sensational-
ism. . . . [T]here is a rational and at least arguably close relationship between the
facts revealed and the activity to be explained.13
I N 1978 M E D I C A L E C O N O M I C S P U B L I S H E D A N A R T I C L E entitled “Who Let

This Doctor in the O.R.? A Story of a Fatal Breakdown in Medical Policing.”
Dr. Beatrice Gilbert, the focus of the article, was alleged to have committed two
acts of malpractice that had left patients dead or disabled. The article included
Gilbert’s name and photograph and discussed her psychiatric history and mari-
tal problems. She sued for improper disclosure of private facts. A U.S. court of
appeals rejected her claim.14
The court agreed with some of Gilbert’s premises: “[D]issemination of non-
newsworthy private facts is not protected by the first amendment.” Further,
even where certain matters “are clearly within the sphere of legitimate public
interest, some private facts about an individual may lie outside that sphere.”
Because each member of our society at some times engages in an activity that fairly
could be characterized as a matter of legitimate public concern, to permit that
activity to open the door to the exposure of any truthful secret about that person
would render meaningless the tort of public disclosure of private facts. . . . [E]very
private fact disclosed in an otherwise truthful, newsworthy publication must have
some substantial relevance to a matter of public interest.15
That standard was met in this case. The topic of policing failures in the
medical profession was clearly newsworthy.
With regard to the publication of plaintiff’s photograph and name, we find that
these truthful representations are substantially relevant to a newsworthy topic because
they strengthen the impact and credibility of the article. They obviate any impression
that the problems raised in the article are remote or hypothetical, thus providing an
aura of immediacy and even urgency that might not exist had plaintiff’s name and
photograph been suppressed. Similarly, we find the publication of plaintiff ’s
psychiatric and marital problems to be substantially relevant to the newsworthy
topic. . . . [T]hey are connected to the newsworthy topic by the rational inference
that plaintiff ’s personal problems were the underlying cause of the alleged
malpractice. . . . [E]ditors must have freedom to make reasonable judgments and
to draw one inference where others reasonably could be drawn. This is precisely
the editorial discretion contemplated by the [First Amendment] privilege.16
W I L L I A M S I D I S A N D M I C H A E L V I R G I L were public figures or celebrities. By

their own actions, they had sought and achieved public recognition. (In addi-
tion, both had cooperated with the media and had balked only because they
were unhappy with the media’s published product.) Courts have consistently
subjected the privacy claims of public figures to strict scrutiny, rejecting actions
brought by professional athletes17 and well-known performers.18 Courts have
also been hostile to privacy claims asserted by public officers19 and candidates
for public office.20 Government employees have been unsuccessful in asserting
privacy claims to preclude disclosures of payroll records21 and evaluations of
their job performance.22 Individuals may also trigger attention by their unusual
behavior: an owner reporting the loss of a pet panther,23 a man returning a bag
of money to its rightful owner,24 a builder constructing a highly publicized mall,25
and a family engaged in extensive litigation.26 Oliver Sipple’s actions in saving
the life of President Ford brought him to the public’s attention in much the
same way.
Of course, even obscure figures may be thrust into the limelight without
consciously inviting attention. Beatrice Gilbert did not seek media commentary
on her misadventures in the operating room. Persons in her position may seek
to challenge false accusations under the law of defamation or false light privacy,
but they cannot invoke the law of privacy to preclude truthful disclosures about
improper or questionable behavior: for example, that a retail distributor had
refused to sell a black-oriented newspaper,27 that a Roman Catholic priest had
engaged in sexual relations with young adults,28 that an employee had allegedly
mistreated residents in a home for the mentally handicapped,29 that a landlord
had evicted a tenant from substandard housing,30 that an owner of horses had
allegedly mistreated his animals,31 and that youthful parents had abandoned
their baby at a local hospital.32 The courts regarded all of these stories as news-
worthy.
In some cases the relation of the complainant to the media story may be
both adventitious and innocent.33 When he was eighteen, John Carlisle married
Jeanette Morrison, then age fourteen. The marriage was quickly annulled.
Morrison later became the screen actress Janet Leigh. Fawcett Publications
carried a biographical sketch of Janet Leigh, including a discussion of her early

romance with Carlisle and their abbreviated marriage.34 Carlisle’s suit for inva-
sion of privacy was rejected on the ground that a marriage and an annulment
involving a public figure were an appropriate topic for comment.35
O F A L L N E W S W O R T H Y T O P I C S , crime has attracted the most attention. With

rare exceptions, privacy actions brought by persons caught up in the criminal
process have been rejected. The media may report on the criminal records of
the famous and the obscure.36 They may report on persons suspected of crimes;37
on persons accused,38 arrested,39 or standing trial;40 and on persons previously
accused, tried, or convicted—even though the accused individuals were exon-
erated or their convictions set aside.41 Victims of crimes also must endure the
glare of publicity,42 as must witnesses and others having contacts with the crimi-
nal incident.43 Special efforts to protect the privacy of victims of sexual assaults
have generally proved unavailing.44 Even the relatives of crime victims45 and of
persons accused of crime46 may have their private lives exposed in discussions
related to the criminal incident. Families rarely succeed in seeking to protect
the privacy of deceased crime victims.47 (In general, the right of privacy does
not survive the death of the person whose privacy has allegedly been invaded.48)
Most of these decisions rest on unassailable grounds. In many instances the
challenged disclosures are not of private facts at all but of information gleaned
from public records or otherwise available in the public domain. Second, the
public has an acute interest in information about the commission of crimes and
about apprehensions of suspects, trials of the accused, convictions of the guilty,
and exoneration of the innocent. Among other things, disclosures about such
matters are vital to monitoring the operations of government to guard against
oppression, corruption, and abuse—of particular concern in criminal law en-
forcement. Even so, some courts have been prepared to impose limits even in
cases of reports about crime.
1. Kathy Sheets was killed by a bomb. Gary Sheets, her husband, gave his wife’s
diary to investigators on the understanding that its contents would remain
confidential. (Mr. Sheets was not implicated in the crime.) A detective provided
information from the diary to an author who incorporated that information—
including quoted excerpts—in a book about the bombing. A U.S. court of
appeals held that a spouse’s views about her husband’s “character, marriage,
finances, and business [were] personal in nature and subject to a reasonable
expectation of privacy.” Mr. Sheets was held to have a tenable claim against the
government for release of the diary’s contents. The publisher was not sued.49
2. Anthony and Helen Capra were participants in the federal witness protection
program. Helen applied for a license to engage in activities regulated by the
California Racing Board. On investigation by the Thoroughbred Racing
Association, Helen Capra’s true identity was uncovered. The association publicly
disclosed the information in a press release. On the Capras’ suit for improper
disclosure, a U.S. court of appeals ruled that the Capras had raised a triable issue
as to whether the disclosure was justified by the newsworthiness of the press
release.50
3. Jane Doe had witnessed a murder. The Times-Mirror, in its report on the crime,
publicized Doe’s real name. A California court ruled that it was a jury question
whether Jane Doe’s identity was newsworthy. The state has a strong interest in
protecting witnesses connected with criminal investigations.51
4. Mr. Garner and Grace Smith were convicted of the murder of Frank Smith,
Grace’s husband; the convictions were reversed on appeal. Triangle Publications
gave lurid accounts of the crime. The criminal defendants sued for invasion of
privacy, and a federal court ruled that it was a question for the jury whether
Triangle had forfeited its privilege to report newsworthy information by
providing a fictionalized version of the crime and of the adulterous relation
between the two criminal defendants.52
In a significant exception to the general trend, California has sought to

protect the privacy interests of erstwhile malefactors to facilitate their rehabili-
tation. In Melvin v. Reid,53 a woman recovered for public disclosure of her past
life as a prostitute in a movie released seven years after she had abandoned that
life. She had become a respectable housewife in a community in which her
lurid past was not known. In Briscoe v. Reader’s Digest Ass’n,54 a man recovered
for a magazine’s disclosure of a crime committed seven years earlier; he had
served his time, had been rehabilitated, and was living with family and friends
who did not know about his past. A similar result was reached on similar facts
in Conklin v. Sloss.55 Whether this trio of cases is still good law turns on two
Supreme Court cases concerning the impact of the First Amendment on ac-
tions for public disclosure of private facts. They are considered in Chapter 29.
T W E N T Y - N I N E
THE MAN WHO WOULD BE WOMAN
T O N I A N N D I A Z WA S B O R N I N P U E R T O R I C O in 1942 as Antonio Diaz, a

male. Antonio moved to California in 1964. Suffering from severe gender-
identification problems, he had surgery in 1975 to remove his external male sex
organs and provide external female genitalia. Thereafter, Diaz looked and be-
haved like a woman (and will be referred to hereafter as a female). She scrupu-
lously kept the surgery a secret from all but her immediate family and closest
friends. She changed her name to Toni Ann Diaz and, to the best of her ability,
effected changes in relevant public records.
In 1975 Diaz enrolled in the College of Alameda, a two-year school. In 1977
she was elected student body president, the first woman to hold that office. Near
the middle of her term, Diaz became embroiled in a controversy in which she
charged the college’s administrators with misuse of student funds. The controversy
was reported in the press. Sidney Jones, a columnist for the Oakland Tribune,
received information that Diaz was a man. He was able to verify the report by
tracking down a police record (a misdemeanor arrest and an acquittal) that showed
a male identity. Jones included the following item in his March 26, 1978, column:
More Education Stuff: The students at the College of Alameda will be surprised to
learn that their student body president, Toni Diaz, is no lady, but is in fact a man
whose real name is Antonio.
Now I realize that in these times, such a matter is no big deal, but I suspect his
female classmates in P.E. 97 may wish to make other shower arrangements.1
On reading the article, Diaz became very depressed; she was forced to
reveal the truth, which she had worked so hard to conceal. She testified that as
THE MAN WHO WOULD BE WOMAN 203
a result of the article she had suffered from insomnia, nightmares, and memory
lapses. She had delayed her enrollment in a four-year college and, as of 1980,
had still not enrolled. Diaz sued for public disclosure of private facts, and a jury
returned a special verdict finding (1) that Jones and the Oakland Tribune had
disclosed a private fact concerning Diaz, (2) that the fact was not newsworthy,
(3) that the disclosure was highly offensive to a person of reasonable sensibili-
ties, (4) that the defendants had made the disclosure with knowledge that it was
highly offensive or with reckless disregard of whether it was or not, and (5) that
the disclosure had caused injury to Diaz. Diaz was awarded $250,000 in com-
pensatory damages and $525,000 in punitive damages.2
A California appeals court set aside the award because of errors in the trial
court’s instructions. But it expressed approval of the theory of Diaz’s case and of
the magnitude of the jury award. The court rejected defendants’ argument that
because the fact of Diaz’s gender was a matter of public record, its publication
was not actionable. The court responded that the police record on which Jones
had relied had contained information concerning one Antonio Diaz. No men-
tion had been made of Diaz’s new name or gender. Jones had relied on other
sources to supply the link: “[W]e conclude that Diaz’s sexual identity was a
private matter.”3
In discussing newsworthiness, the court gave weight to three factors: (1)
“the social value of the facts published,” (2) “the depth of the article’s intrusion
into ostensibly private affairs,” and (3) “the extent to which the party voluntarily
acceded to a position of public notoriety.” The court would not accept the view
that because Diaz was the first female student body president, she was a public
figure, making her sexual identity newsworthy: “As student body president,
Diaz was a public figure for some purposes. However . . . we cannot state that
the fact of her gender was newsworthy per se.” The extent to which Diaz volun-
tarily acceded to a position of public notoriety and the degree to which she
opened her private life were held to be questions of fact for the jury. The court
found little if any connection between the information disclosed and Diaz’s
fitness for office as student body president: “The fact that she is a transsexual
does not adversely reflect on her honesty or character.”4
C O U R T S G E N E R A L L Y H AV E R U L E D that a third party’s disclosure of intimate

sexual matters is actionable as public disclosure of private facts.5 But there have
been occasional exceptions. For example, Randy Coplin produced and broad-
cast a talk show over the public access channel of the cable television system in
Fairfield, Iowa. One day Coplin asked viewers if they had “the nagging suspicion
that in bedrooms across the country, on kitchen tables, in limos and other
venues too scintillating to mention, other folks are having more sex, livelier sex
and better sex [than they are].”
One caller named Lyle said he suspected that his neighbors in a trailer park
were having more sex than he was “because I look at their window, and I see
them going at it all the time.” At Coplin’s urging, Lyle revealed his neighbor’s
exact address, the “Trailer Park Residence.” A subsequent caller confirmed that
the occupants of that residence “go at it all night and day.”
Another caller, Gordo, said that in the Harrison part of Second Street all
kinds of sex were going on: “premarital sex, marital sex [and] extramarital sex.”
He identified a particular house on Second Street, giving its address. Gordo
said that “there’s this green truck that comes there and stays . . . until four in the
morning.” He also reported that the truck came around lunchtime, agreeing
with Coplin’s response that it was for “kind of a nooner, huh?”6
The Fairfield local authority controlling the public access channel suspended
Coplin’s authority to broadcast for six months for improper programming. Its
determination was upheld by the Fairfield City Council and a U.S. district
court on the ground that the programming was invasive of the privacy of the
persons identified and described in the call-in show. A U.S. court of appeals
found a possible infringement of Coplin’s First Amendment rights and remanded
for further proceedings. Findings were required as to whether (1) the facts
disclosed were private or already in the public domain, (2) the disclosures per-
tained to a legitimate concern of public interest, and (3) the disclosures were
highly offensive to a reasonable person.
The first ground of decision seems sound. As the court observed, if “a
green truck regularly parks on a Fairfield city street at midday [it probably] is
not private information.” As to the Trailer Park Residence, it was possible that
“the sexual activities were so openly performed that knowledge of these activi-
ties was already in the public domain.” These were issues of fact to be explored
at trial.7
But the court’s comments on the second and third points are hard to accept:
[W]e agree that, in most circumstances, holding up the sexual activities of a
specific private individual to public ridicule is not a legitimate concern of public
interest and that doing so is highly offensive. . . . [But if the affected residents]
were instead public figures or public officials, then the public dissemination of
truthful and accurate facts about them would almost certainly have been pro-
tected by the First Amendment. . . . Because we know nothing of the [affected
residents,] we cannot rule that the information revealed on Coplin’s show was not
a legitimate concern of public interest or that it was highly offensive.8
Assume that the occupants of the Trailer Park Residence were a city coun-
cilman and his wife and that the occupant of the Second Street residence was a
prominent local television commentator. Of what possible concern is it to the
public how often any of them have sex and whether they engage in sex during
the day or at night or both? What additional facts are needed to support the
view that, absent some pertinent public issue, disclosures about intimate sexual
relations are of no concern to the public and are highly offensive to reasonable
persons in the positions of the affected individuals?
T H E D I A Z C A S E C O U L D A L S O B E V I E W E D as a disclosure of medical informa-

tion—the sex-change operation. Courts have typically been protective as re-
gards disclosures of personal medical information.9 Even New York, which
does not recognize an action for public disclosure of private facts, barred a
psychiatrist from publishing verbatim transcripts of his sessions with a mother,
father, and child; the patients’ identities could be discerned from the disclosures
in the transcripts. The New York courts relied on the confidentiality of the
doctor-patient relationship.10
Texas confronted a related problem when an organization representing
employers invoked the state’s Open Records Act in seeking to ascertain the
name of each employee who had asserted a worker’s compensation claim, the
nature of each injury, the identity of the employer involved, and the name of
each employee’s attorney. In restricting access to some information concerning
the nature of employee injuries, the Texas Supreme Court observed that provid-
ing access to the employers would make the data available to all, including the
media. The court concluded that an employee’s common law right of privacy
might be infringed in cases involving sexual assault, illegitimacy, pregnancy,
psychiatric treatment, injuries to sexual organs, attempted suicide, and physical
or mental abuse by others. It directed that a judicial examination be made on a
case-by-case basis to determine whether the public interest in disclosure out-
weighed the employee’s right to privacy.11
Courts have been less sympathetic in protecting privacy claims as regards legal
status. A Rhode Island court rejected a challenge to a newspaper’s publication of
divorces granted each month, reports that identified the parties by name.12 A
Pennsylvania court limited its intervention in an ugly matrimonial case to an affir-
mance of liability for a newspaper’s fictionalization of the episode in a manner that
pictured the participants in “a derogatory or humiliating or embarrassing light.”13
North Carolina rejected a claim by a child and her adoptive mother against
a newspaper’s participation in an effort by the child’s biological mother to locate
the child after a lapse of seventeen years. (The biological mother, a former
carnival worker, had abandoned the child at the age of four months.) The court
left open the possibility that the child and her adoptive mother could sue the
newspaper for intentional infliction of emotional distress, but it declined to
allow an action for public disclosure of private facts.14 A lower court had ob-
served that a reasonable person in the position of the adoptive mother or the
child could well find it “highly offensive and distressing to have spread before
public gaze their identities, the fact that the child had been abandoned by carni-
val workers, or the sensational details of their encounter with the natural
mother.”15 The lower court’s position is the more persuasive.16
In several cases courts have upheld claims against the publishers of photo-
graphs of women in the nude. In each instance the photograph had been taken
in a private place, and the woman had not authorized publication.17
Courts have also imposed liability for publication of private financial in-
formation. In one case a creditor published a notice of the debtor’s outstanding
indebtedness in a local newspaper; a Kentucky court ruled that both the credi-
tor and the newspaper were liable for invasion of the debtor’s privacy.18 The
National Enquirer published an article about Eddie Murphy’s financial arrange-
ments for the support of his illegitimate son; a California court ruled that a
jury could reasonably find that the disclosures were highly offensive and not
newsworthy.19 Pennsylvania’s welfare department provided a newspaper with a
supposedly fictionalized case study to illuminate aspects of welfare application
procedures. The veneer of fiction was inadequate, and seventeen acquaintan-
ces recognized Rebekah Harris as the person described in the story. The story
disclosed intimate family details—for example, the daughter’s pregnancy, the
son’s employment problems. A Pennsylvania court held that a jury could find
that the story was highly offensive and not newsworthy.20
The depiction of children has been at issue in several cases. One news-
paper ran a story on the training of mentally challenged children, including
the names and photographs of the Deaton children. A Mississippi court
found that although the training of the mentally handicapped was of legitimate
public interest, the identities of the Deaton children were not. Their identity
as handicapped children was extremely “delicate and private in nature.”21 An-
other newspaper published a story on teenage pregnancies, identifying Craig
Hawkins as the teenage father of an illegitimate child born to a teenage mother.
A South Carolina court affirmed a judgment in Hawkins’s favor for violation of
privacy.22
School records and a student’s academic performance are normally pro-
tected against disclosure.23 In addition, religious beliefs and similar personal
sentiments may be entitled to protection, particularly if the published report

contains elements of fiction.24
In a number of troubling cases, disclosures of fairly routine information—
such as names and addresses—have posed risks of harm to the persons identi-
fied: for example, witnesses to crimes,25 former crime victims,26 and targets of
terrorist threats.27 The courts are divided on whether protection should be ac-
corded to information identifying a potential victim.28
T H E S E , T H E N , A R E T H E A R E A S I N W H I C H S U C C E S S is most likely as regards

claims for public disclosure of private facts by the press: intimate sexual details;
confidential relations between husband and wife; medical procedures, diag-
noses, and outcomes; private nudity; confidential financial information; em-
barrassing revelations about children; records of academic performance; and
religious and related sentiments. In each instance the facts must be truly “pri-
vate”: no prior publicity has occurred, and the individual has endeavored to
keep the information secret. But questions have arisen, in view of several recent
decisions, as to whether the action for public disclosure of private facts has
continuing vitality against disclosures by the media.
Two Supreme Court opinions bear on a person’s right to be protected
against public disclosure of private facts. In Cox Broadcasting Corp. v. Cohn29
and The Florida Star v. B.J.F.,30 the media defendant disclosed the identity of a
rape victim in violation of state law. In each instance the rape victim or her
family brought a civil action and recovered substantial damages in a state court;
and in each case the Supreme Court reversed, ruling that the damage award was
incompatible with the First Amendment.
In 1971 Cynthia Cohn was raped and killed by six youths. She was seven-
teen years old at the time and a student at Sandy Springs High School in Geor-
gia. The perpetrators were indicted and brought to trial. At a recess during a
pretrial session, Wassell, a reporter for a local television station, asked the court
clerk to show him the indictment. The indictment, a public document available
for inspection by anyone, disclosed the victim’s name. Wassell conveyed the
name and other details about the case to his station, and a news broadcast
identified Cynthia Cohn as the victim. Cynthia’s father sued the station for
invasion of his “zone of privacy,” and the Georgia Supreme Court upheld the
viability of the claim. The Georgia court relied in part on a state statute making
it unlawful to publicize the name or identity of a rape victim.31
Reversing in a 1975 decision, the U.S. Supreme Court struck down the state
statute as unconstitutional. It barred any claim by Cohn. The Court emphasized
that the information had been disclosed in the public record of a judicial pro-
ceeding, and it observed that the public relies on the press to provide informa-
tion about the operations of government.
[To] make public records generally available to the media but forbid their
publication if offensive to the sensibilities of the supposed reasonable man [is
unacceptable]. Such a rule would make it very difficult for the media to inform
citizens about the public business and yet stay within the law. The rule would
invite timidity and self-censorship and very likely lead to the suppression of many
items that would otherwise be published and that should be made available to the
public.32
The Court’s opinion is baffling—it is utterly unresponsive to the issue at

hand. The press was not required to guess about “the sensibilities of the sup-
posed reasonable man.” The state statute was explicit that the names and iden-
tities of rape victims were not to be publicized beyond the boundaries of the
official proceeding. In some circumstances that ban may be excessive (as devel-
oped hereafter). But the Court never pursued that issue. It seemed to take the
position that once any member of the public gained access to an official docu-
ment, that document became a public record available to all. The basis for such
a Draconian ruling was never articulated.33
I N T H E S E C O N D C A S E , B . J . F. informed the Sheriff ’s Department of Duval

County, Florida, that she had been robbed and sexually assaulted by an un-
known assailant on October 20, 1983. The department prepared a report of
the incident, identifying B.J.F. by her full name. In violation of state law, the
department placed the unedited report in its pressroom to which the press and
the public had unrestricted access. A reporter for the Florida Star prepared a
story based on the department’s report, identifying B.J.F. by name. In violation
of its own internal policy, the newspaper published the name. The department’s
pressroom had signs making it clear that the names of rape victims were not
matters of public record and were not to be published. The Star reporter testi-
fied that she had understood that she was not allowed to take down B.J.F.’s
name and that she was not supposed to take the information from the Sheriff ’s
Department.
Florida had a statute making it unlawful for the mass media to publish the
names or identities of rape victims. B.J.F. sued the Star for having published
her name. The Florida courts ruled that the Star’s violation of the statute was
negligence per se and sustained a recovery for B.J.F. of $75,000 compensatory
damages and $25,000 punitive damages. B.J.F. testified that she had heard
about the Star article from fellow workers and acquaintances; that her mother,
babysitting at her home, had received several threatening calls from a man who
had stated that he would rape B.J.F. again; and that these events had caused
B.J.F. to change her phone number and residence, seek police protection, and
obtain mental health counseling. The jury found that the Star had acted with
“reckless disregard for the rights of others.”34
In setting aside the judgment in favor of B.J.F., the Supreme Court in 1989
followed a standard articulated in a prior opinion: “[I]f a newspaper lawfully
obtains truthful information about a matter of public significance then state
officials may not constitutionally punish publication of that information, absent
a need to further a state interest of the highest order.”35
In support of the jury verdict, B.J.F.’s counsel argued that imposing liability
in this case furthered three closely related state interests: the privacy of victims
of sexual offenses; the physical safety of such victims, who may be targeted for
retaliation if their names become known to their assailants; and the goal of
encouraging victims of such crimes to report these offenses without fear of
exposure. The Supreme Court conceded that these were “highly significant
interests.” But it ruled that they did not carry the day in this instance because
(1) the state had failed to utilize its first line of defense in precluding dissemina-
tion of information in the Sheriff ’s Department pressroom; (2) the Florida
statute was categorical in its prohibition and failed to distinguish among very
different circumstances (hypothesizing a case in which the victim’s identity had
already become widely known in the community); and (3) the statute was
underinclusive in that it was limited to the mass media and did not preclude
disclosures by others such as gossipmongers.36
The Supreme Court opinion in Florida Star is a monument to the Court’s
insensitivity to the plight of rape victims. It is also at variance with common
sense and settled legal doctrine. The first ground relied upon by the Court
conflicts with the usual manner in which safety standards are employed to re-
duce or preclude the incidence of harm. Florida had prohibited government
disclosure of the identity of rape victims, and the state had settled with B.J.F.
for its role in the improper disclosure. To say that further safeguards were
inappropriate is akin to saying that once a nuclear reactor is equipped with one
safety mechanism (such as the emergency core cooling system), other mecha-
nisms (such as the containment structure around the plant) are not needed. The
way to guard against serious harm is to have multiple lines of defense.
As to the second ground, the Court’s opinion rests on a misconception.
The doctrine of negligence per se is a well-established feature of civil liability. It
says in effect that certain defined risky behavior, violative of a state-prescribed
safety standard, has been determined by the legislature to be unreasonable be-

havior and that such conduct generally triggers civil liability. For example, a
motorist who stops an unlit car on a highway at night in violation of a traffic
safety regulation is negligent per se. But the doctrine recognizes exceptions—
as, for example, when a car has become disabled on the highway through no
fault of the motorist because of a failure of its electrical system. In such a case,
negligence per se would not be invoked if the unlit automobile were the cause of
an accident before the hapless motorist could take remedial measures.37 So,
too, in the instance hypothesized by the Court in Florida Star. If the rape victim’s
name were already known in the community—as when she herself had sought
publicity—it would be pointless to invoke the statute under the doctrine of
negligence per se, and no court would do so.
Finally, the limitation of the statute to the mass media should not have
posed a problem. They were the principal menace. A state statute that pre-
scribes heightened fire prevention standards for a building storing flammable
substances is not vitiated because the same standards are not applied to all
buildings. Further, gossipmongers, although not subject to the state statute,
could be reached in a private civil action for negligence if a jury determined
that their conduct had been unreasonable under the circumstances. The statute’s
limited scope did no more than remove the prospect of invoking the doctrine of
negligence per se in nonmedia cases.
Despite its outcome, the Court in Florida Star sounded a note of caution.
Although reaffirming the freedom of the press to accurately report the contents
of public records, the Court disclaimed any intimation “that publication of
truthful information is automatically protected, or that there is no zone of per-
sonal privacy within which the State may protect the individual from intrusion
by the press.”38
P E R H A P S A P L A I N T I F F C O U L D P R E VA I L in a case such as Hyde v. City of Colum-

bia.39 Hyde had been abducted by an unknown male assailant. She escaped and
reported the incident to the police. In contravention of state law, the police
released information about the incident to the press, which reported the epi-
sode along with Hyde’s name and address. Hyde was subsequently terrorized by
the assailant on seven separate occasions. A Missouri court held that the media
could be held accountable for negligent infliction of emotional distress (Hyde
having disclaimed reliance on a theory of privacy):
[T]he name and address of an abduction witness who can identify an assailant still
at large before arrest is a matter of such trivial public concern compared with the
high probability of risk to the victim by their publication, that a news medium
owes a duty in such circumstances to use reasonable care not to give likely occasion
for a third party [still at large] to do injury to the plaintiff by the publication.40
A contrasting case is Ross v. Midwest Communications.41 Midwest broadcast

a television program questioning the guilt of Steven Fossum, convicted of two
rapes. One of these, the rape of Susan Lewis, was almost identical in the details
of its execution to a rape reported by Marla Ross. But Ross, viewing Fossum in
a lineup, had said he was not the rapist. The theory of the program, in reporting
the rape of Ross, was that if Fossum were innocent of that rape, he was also
innocent of the rape of Susan Lewis. Ross sued for invasion of privacy, object-
ing to the program’s use of her first name and a picture of her residence. A U.S.
court of appeals, eschewing constitutional principles, held that Ross could not
recover under the law of Texas (the relevant state law). The details of the attack
on Ross were of “legitimate public concern”; disclosure of her first name and a
picture of her residence were necessary to enhance the program’s credibility.42
Unlike Hyde, the reported details in Ross served an important journalistic
function in seeking to exonerate Fossum for a crime he had not committed. (At
the time of the writing of the opinion in Ross, Fossum had been pardoned for
the unrelated rape, and a motion for a new trial was pending in the Susan Lewis
case.) Further, the broadcast had not exposed Ross to any enhanced danger.
The rape had occurred in her home; the program had provided no information
not known to the rapist still at large.
C O X B R O A D C A S T I N G A N D F L O R I D A S TA R preclude an action for public dis-

closure of private facts in two circumstances. As a general matter, no action
may be brought if (1) the information is published by a media defendant, (2) the
information is truthful, (3) the information concerns “a matter of public signifi-
cance,” and (4) the remedy sought is not “narrowly tailored to [further] a state
interest of the highest order.” More specifically, the opinions make it clear that
no viable claim can be premised on an accurate report of the contents of a
public record.43
In practical terms, the second conclusion may be the more significant. It
provides the basis for the assertion made in an earlier chapter that the state-based
privilege of fair and accurate report is now a constitutional defense to a defamation
action in cases in which the source of the information is a public record.44
But the scope of “public records” is potentially broad, and the Cox opinion
seems to preclude efforts at containment. In Howard v. Des Moines Register &
Tribune Co.,45 an article reported on abuses at a county home. It identified
Robbin Howard as a woman who had been the unwilling victim of sterilization.
Howard’s suit for invasion of privacy was rejected on the ground that the facts
of the sterilization had been included in letters to the governor, and these quali-
fied as public records under a broad interpretation of the state’s Freedom of
Information Act (FOIA).46 The interaction of the public records rule and the
pertinent FOIA may make any information, no matter how personal or ob-
scure, fair game for disclosure in the media if the information appears any-
where in the government’s archives and is not beyond the reach of the appli-
cable FOIA.
Howard poses a serious problem. The scope of the public records rule
needs to be subjected to more exacting scrutiny.47
I N 1991 N I C H O L A S L E M A N N W R O T E A H I G H L Y P R A I S E D B O O K , “The
Promised Land: The Great Black Migration and How It Changed America.”
The volume, a journalistic history of the period 1940–1970, described the
migration of 5 million blacks from impoverished rural areas in the South to
cities of the North in search of a better life. Two themes emerged in the work:
(1) the migration transposed virtually intact a sharecropper morality, character-
ized by a family structure both “matriarchal and elastic” and by an “extremely
unstable marriage bond,” to the slums of the northern cities; and (2) this moral-
ity interacted, in random and sometimes perverse ways, with government pro-
grams to alleviate poverty—for example, public aid policies that discouraged
cohabiting couples from living together and public housing policies that pre-
cipitated marriages of such couples.
Lemann’s focus was on individuals, including representative migrants. “Fore-
most among these [was] Ruby Lee Daniels. Her story [was] the spine of the
book.”48 Daniels left a sharecropper life in Mississippi in 1946 to move to the
urban slums of Chicago. She had numerous children and relied heavily on
public aid. Her life was made particularly difficult by her relationship with
Luther Haynes, also a former sharecropper from Mississippi. The two lived
together, had children, and got married when it became advantageous to do so
(to gain access to public housing). The book’s revelations about Haynes con-
cerned “his heavy drinking, his unstable employment, his adultery, [and] his irre-
sponsible and neglectful behavior toward his wife and children.”49 He was por-
trayed as a bad husband and a bad father who had occasionally run afoul of the law.
Luther Haynes left Ruby Lee Daniels in 1965 and subsequently divorced
her and married Dorothy Johnson, to whom he was married at the time of the
litigation.
They have been a respectable married couple for two decades. [They own their
own home on the South Side of Chicago.] Luther’s alcohol problem is behind
him. He has steady employment as a doorman. His wife is a nurse, and in 1990 . . .
the couple’s combined income was $60,000 a year. He is not in trouble with the
domestic relations court. He is a deacon of his church. He has come a long way
from sharecropping in Mississippi and public housing in Chicago.
Haynes sued Lemann and his publisher for public disclosure of private facts.50
In a 1993 opinion by Chief Judge Posner, Haynes’s complaint was rejected.
To the extent that Luther’s transgressions were a matter of public record (in the
criminal and domestic relations courts), he could not have the information
suppressed. More important, the disclosures were vital to the story of the book:
Lemann’s methodology places the individual case history at center stage. If he
cannot tell the story of Ruby Daniels without waivers from every person she
thinks did her wrong, he cannot write the book. [Changing names would not
have sufficed, since Haynes could be identified by the details of his life.] Lemann
would have had to change some, perhaps many, of the details. But then he would
no longer have been writing history. He would have been writing fiction. . . .
[T]he public needs the information conveyed by the book, including the
information about . . . Haynes, in order to evaluate the profound social and
political questions that the book raises.51
The court emphasized that Lemann’s book did not disclose any intimate
details about the private life of Luther Haynes. The publication at issue was
“not to be equated to publishing a photo of a person making love or of a person
undergoing some intimate medical procedure.” The pertinent criteria of offen-
siveness and newsworthiness were related:
An individual, and more pertinently perhaps the community, is most offended by
the publication of intimate personal facts when the community has no interest in
them beyond the voyeuristic thrill of penetrating the wall of privacy that sur-
rounds a stranger. The reader of [this book] would have no legitimate interest in
the details of Luther Haynes’s sex life; but no such details are disclosed.52
In sum, Luther Haynes’s recent reputation, built up over years of good

living, was not permitted to stand in the way of disclosures of his past miscon-
duct when those disclosures were necessary to advance the public’s understand-
ing of the larger social movements in which Haynes was a participant. It was
irrelevant that Haynes “did not aspire to be a representative figure in the great
black migration from the South to the North.”53
The problem posed by autobiographical accounts—such as the story of
Ruby Lee Daniels—is troublesome. If Daniels chooses to disclose her experi-
ences and those experiences are of legitimate public interest, the reasoning of
the Haynes case precludes suppression of her story.54 When two parties share
the same secret, it is difficult to protect the privacy of one without impairing
the autonomy of the other. This seems to be the rule in personal relationships.
In the commercial sector, the rule is different. Neither a creditor nor the media
are free to publicize a private indebtedness absent some relationship to a larger
social issue.55
D E S P I T E T H E D I F F I C U L T I E S A S S O C I AT E D W I T H I T S A P P L I C AT I O N , the action
for public disclosure of private facts should not be discarded. The standard
articulated in Florida Star is the correct one. The media should be allowed to
publish truthful information, lawfully obtained, about a matter of public signifi-
cance absent proscription by a narrowly tailored remedy to advance a state
interest of the highest order.56
The problem with Florida Star is that the Court misapplied its own test.
The interests sought to be protected by concealment of the identities of rape
victims were “highly significant”: the victims’ privacy, their physical safety, and
the encouragement of reporting sexual assaults. As discussed previously, the
Supreme Court’s objections to the state’s proscription make no sense. But other
qualifications may well be appropriate—for example, to protect persons improp-
erly charged, as in the Ross case, or to expose instances of government corrup-
tion or abuse. The Supreme Court should demand exceptions to any blanket
ban on identifying rape victims. But they should be the right exceptions.
As to other matters typically the subject of successful suits against public
disclosure, they, too, should pass muster in the typical case. It is rarely a
matter of public significance that a person has undergone a sex-change opera-
tion or any other medical procedure, or that a person pursues in private par-
ticular sexual practices, or that a woman has been photographed nude in a
private place, or that a person is in financial distress or has made particular
financial arrangements in ordering his personal affairs, or that a child is men-
tally or otherwise handicapped, or that a student has done well or poorly in
school, or that a person entertains particular religious beliefs or holds other
privately expressed sentiments. All of these “private facts” are intensely per-
sonal matters, many of them protected against disclosure by specific legisla-
tion. To be sure, exceptions are appropriate here—as in the case of identifica-
tion of rape victims—when otherwise personal information is germane to a
legitimate journalistic enterprise. But the press should have the burden of showing
that the story advances the objectives of the First Amendment—facilitation of
self-government, control of persons in authority, advancement of socially sig-
nificant truth—and that the identification of the affected individual bears a

significant nexus to the story.
The need for authentification by identification may be strong if the point
of the story is abuse of government authority or the need for social reform to
correct a public evil. The need is less clear in other instances. The advancement
of truth may well require disclosures about sexual practices, about medical
procedures and outcomes, about the financial circumstances of segments of the
population, and about other personal data. But the identification of particular
individuals is likely to be justifiable only in the most unusual case.
The press should be afforded great latitude in reporting on newsworthy
events. They also should be given clear notice of the boundaries of presumptive
privacy. In Florida Star there was no question that the press knew where the
boundary was and that the newspaper had no newsworthy objective in crossing
the line. The same is true with other instances discussed in this chapter in
which a public disclosure action has been held to be appropriate for improper
disclosure of private facts. The most difficult cases are those such as Lemann,
where an autobiographical narrative by one person makes disclosures of private
facts having an impact on others. Probably no solution provides adequate scope
for the autonomy of the speaker while protecting other affected parties who
would prefer to shield hitherto private facts from public view.
On public disclosure of private facts, the real threat may not be inhospi-
table legal doctrines. The cause of action may be rendered obsolete not by any
shift in the law but by the onslaught of modern technology. (See Chapter 37 on
the impact of the Internet.)
T H I R T Y
PAPARAZZI
J A C Q U E L I N E O N A S S I S , W I D O W of the late President Kennedy, was a well-

known public figure. Ronald Galella was a freelance photographer and a self-
styled “paparazzo.” Paparazzi are photographers who make themselves apparent
to the public and obnoxious to their subjects to aid in advertising and selling
their pictures. In taking photographs of Mrs. Onassis and her two minor chil-
dren (John and Caroline Kennedy), Galella triggered a number of disturbing
incidents.
1. When John Kennedy was riding his bicycle in New York’s Central Park, Galella
jumped out from the bushes into the boy’s path, causing Secret Service agents
to fear for John’s safety.
2. On other occasions Galella interrupted Caroline at tennis, and he invaded the

children’s private schools.
3. Galella jumped and postured while taking pictures of Mrs. Onassis and her
party at a theater opening and on numerous other occasions.
4. He followed a practice of bribing apartment house, restaurant, and nightclub

employees, as well as romancing a family servant, to keep apprised of the Onassis
family’s movements.
5. At one time Galella’s powerboat came close to Mrs. Onassis while she was
swimming; he also endangered the children’s safety while they were swimming,
water skiing, and horseback riding.
6. On occasion, Galella intentionally touched Mrs. Onassis and her daughter, he

caused fear of other physical contact in his frenzied attempts to get their
PA PA R A Z Z I 217
pictures, and he followed family members closely in his automobile, posing a

hazard.1
Mrs. Onassis sought injunctive relief against Galella, charging assault and
battery, invasion of privacy, harassment, and intentional infliction of emotional
distress. Although expressing some doubt as to how New York would view the
privacy claim, the U.S. court of appeals ruled that Galella’s conduct was tortious
in the other respects alleged. Moreover, Galella went beyond any privilege ac-
corded in connection with gathering news: “When weighed against the de minimis
public importance of the daily activities of [Mrs. Onassis,] Galella’s constant
surveillance, his obtrusive and intruding presence, was unwarranted and unrea-
sonable. If there were any doubts in our minds, Galella’s inexcusable conduct
toward [the] minor children would resolve it.”2
Galella was enjoined from (1) approaching within twenty-five feet of Mrs.
Onassis or within thirty feet of the children, (2) entering the children’s schools
or play areas, (3) touching Mrs. Onassis or blocking her movement in public
places or thoroughfares, (4) engaging in any act foreseeably or reasonably calcu-
lated to place the life and safety of any family member in jeopardy, and (5)
engaging in any conduct that could reasonably be foreseen to harass, alarm, or
frighten Mrs. Onassis or the children.3
Galella thereafter violated the injunction on twelve separate occasions.
Confronted with the prospect of a heavy fine and a possible prison sentence, he
agreed to cease his efforts to photograph Mrs. Onassis and her children.4
A N O T H E R E X A M P L E O F J O U R N A L I S T I C E X C E S S is Wolfson v. Lewis.5 Leonard

Abramson was chief executive officer of US Healthcare. Nancy Wolfson was
Abramson’s daughter. She and her husband, Richard Wolfson, also were execu-
tives of US Healthcare. The Wolfsons had two children, ages three and one, and
Mrs. Wolfson was pregnant. Paul Lewis and Stephen Wilson, reporters for the
syndicated television program Inside Edition, sought to obtain an interview
with Abramson in connection with a projected segment on the salaries of US
Healthcare executives. When Abramson refused, Lewis and Wilson followed
the Wolfsons and their children in their daily activities in Philadelphia, keeping
the family under continuous surveillance. The Wolfsons, fearing for the safety
of themselves and their children, fled to a residence in Florida. Lewis and
Wilson followed, maintaining their surveillance. On occasions they used a “shotgun
mike” in efforts to intercept oral communications among members of the Wolfson
family. Lewis and Wilson had never sought to interview the Wolfsons, the sub-
jects of their surveillance.6
A U.S. district court granted a preliminary injunction against Inside Edi-

tion and its personnel and set the case for trial. The court found that Lewis and
Wilson had intruded, in a manner highly offensive to a reasonable person, upon
the Wolfsons’ solitude. The purpose of the intrusion had been to force Abramson
to consent to an interview, not to gather newsworthy information about the
Wolfsons. Further, the use of “shotgun mikes” had violated statutes in both
Pennsylvania and Florida, statutes that afforded victims a civil remedy.7
O N A S S I S A N D W O L F S O N A R E E X C E P T I O N A L C A S E S . In most instances the

media have been afforded a wide degree of latitude as long as they do not
trespass on private property or violate other specific legal prohibitions. For
example, Henry Dempsey, the man involved in the bizarre aviation mishap
described in Chapter 21,8 declined to grant an interview to a National Enquirer
reporter. She persisted. She allegedly came to his house and continued to press
for an interview even after the plaintiff had refused, repeatedly drove past his
house for more than three-quarters of an hour after the refusal, returned to
plaintiff ’s house two days later and was again rebuffed, followed the plaintiff to
a restaurant and again requested an interview, attempted to photograph the
plaintiff at the restaurant, and left only after plaintiff threatened to call the
management.9
A U.S. district court rejected Dempsey’s claim that the reporter had in-
truded on his privacy and refused to submit the issue of unreasonable intrusion
to a jury. The reporter could lawfully seek interviews, follow Dempsey on a
public street and into a restaurant open to the public, and take a photograph of
Dempsey in the restaurant.10
Dempsey affords the press a latitude that appears excessive. Why should
Dempsey be hounded after he had declined to be interviewed? How long does
Dempsey have to put up with the journalist’s harassment before he can seek the
shelter of the law? Although the court did not discuss the issue, Dempsey’s
claim would probably have been viable—and would almost certainly have gone
to the jury—if Dempsey had been pursued by some nonjournalist after he had
expressed his wish to be left alone.11
In this respect, Dempsey is inconsistent with numerous decisions declining
to grant reporters special immunity. The cases have encompassed a variety of
circumstances: reporters who had refused to follow the lawful orders of police
officers to withdraw from the sites of accidents;12 reporters who had interfered
with the execution of search and arrest warrants, leading to the death or injury
of law enforcement officials;13 a reporter who had negligently intruded on the
PA PA R A Z Z I 219
scene of a crisis, precipitating the suicide of a mentally disturbed individual;14

authors who had removed property from the site of an accident investigation;15
and a reporter who had impersonated a public officer to obtain information.16 In
all of these cases members of the media were held accountable for their mis-
conduct to the same extent as other members of the public.
P E R S O N S A P P E A R I N G I N P U B L I C AT A N E W S W O R T H Y E V E N T may be photo-
graphed without their consent: for example, individuals taken into custody for
the commission of a crime, even if they are arrested by mistake;17 persons
present at the scene of a crime, accident, or arrest, even if they are simply
bystanders;18 the casualties of crimes or accidents;19 persons seeking to aid
others in distress;20 and litigants in cases attracting public attention.21 Photogra-
phers may also take pictures of both public officials22 and public figures23 when-
ever they appear in public. Persons in their company may also be photographed.24
One disturbing class of cases involves pictures of the victims of crimes or
accidents,25 including children sometimes mutilated or decomposed.26 But if
the pictures are taken in a public place, they are almost invariably privileged.27
Nor is it a bar if a photograph captures the subject at a time of acute embarrass-
ment: privacy actions were rebuffed where an accused had been nude at the
time of his arrest28 and where the victim of a crime had been nude at the time
of her escape.29
But persons need not appear in or near the public limelight to be featured
in a news photograph. John Gill and his wife were seated in an affectionate pose
at an ice cream concession in the Los Angeles Farmers’ Market. A photograph
of them was taken and published—without their consent—to illustrate a maga-
zine article about love. The couple sued for an intrusion on privacy.30 In ruling
for the magazine, the California court observed that the picture had been taken
in a public place and had not gone beyond the limits of decency.31 A dissent
argued that “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 of
readers of defendant’s magazines.”32 Most subsequent decisions have followed
the majority’s position.
1. A newspaper showed a picture of James Jaubert’s house with the caption “One
of Crowley’s stately homes, a bit weather-worn and unkempt, stands in the
shadow of a spreading oak.” The court ruled that no right of privacy had been
infringed because the picture had been taken from the street.33
2. Maxwell and Anna Fogel were photographed at the Miami Airport to illustrate
a magazine article on tourists buying goods in Miami for resale in Latin America.
(The Fogels had not been engaged in that practice.) The photograph was held
to be permissible because it had been taken at a place open to the public.34
3. A newspaper carried a story on a local soccer game. Larry McNamara, a player,

was photographed with his genitalia exposed. The court declined to review the
newspaper’s editorial judgment about an otherwise legitimate news picture.35
4. James Pierson, a serviceman, was undergoing training on how to respond to

tortures inflicted on prisoners of war (POWs). A newspaper, with the army’s
permission, reported on the sessions. It displayed pictures of Pierson—clad only
in his underwear—in various positions: strung up between two trees, hand-
cuffed to another tree, being hosed down with water, and being carried
comatose to an ambulance. The court found no invasion of Pierson’s privacy.
The story was newsworthy, and Pierson was in a military training area where he
had no reasonable expectation of privacy.36
5. In doing a story on a prison, the photographer took a picture of Lowe as he

walked in the prison yard in prison garb. Lowe was held to be without redress
because the picture had been taken from a public vantage point.37
Some of these rulings appear to subordinate privacy interests for insub-

stantial reasons. As the dissent pointed out in Gill, a publisher that needs a
romantic couple for an illustration can hire models to play the part.38 Con-
scripting the Fogels to illustrate the story about tourist shoppers was even
worse. The picture of them was a misrepresentation; they had not been in-
volved in the activity under discussion. Newsworthy stories about “Crowley’s
stately homes” and Pierson’s POW training may have justified the pictures
there in issue. But what was the point of showing McNamara’s exposed genitals
or Lowe’s incarceration? Neither was relevant to the journalist’s story. Courts
are understandably reluctant to interfere with the judgments of journalists, but
journalistic judgment was not at issue in either case. In McNamara no one
engaged in the publishing procedure had noticed that McNamara’s genitals
were exposed.39 In Lowe the plaintiff had not been involved in the journalist’s
story (about wrongdoing at the prison); his identity had not been known to the
journalist.40 The question is whether the media should have been held account-
able for harm inflicted by negligence in McNamara and by reckless indifference
in Lowe.
Even more disturbing are journalistic endeavors that precipitate the public
display subsequently recorded and published.
I N M A C H L E D E R V . D I A Z , 41 a television reporter who was investigating the

dumping of toxic chemicals found hundreds of barrels of chemical waste on a
PA PA R A Z Z I 221
vacant lot in Newark, New Jersey. The reporter, Arnold Diaz, did not know
who owned the barrels or how they happened to be at that site, but he observed
that a small business, Flexcraft, occupied adjacent property. He confronted
Irving Machleder, manager of Flexcraft, as he exited the premises. The tele-
vised interview showed a highly agitated Machleder:
Machleder: Get that damn camera out of here.
Diaz: Sir . . . sir . . .
Machleder: I don’t want to be involved with you people. . . .
Diaz: Just tell me why—why are those chemicals dumped in the back. . . .
Machleder: I don’t want—I don’t need—I don’t need any publicity. . . .
Diaz: Why are those chemicals dumped in the back?
Machleder: We don’t—we didn’t dump ’em.
Diaz: Who did?
Machleder: You call the Housing Department. They have all the information.42
The televised interview was broadcast despite the fact that neither Machleder
nor Flexcraft had any connection to the barrels. Indeed, they had reported the
barrels to the authorities two years earlier, and the government had done noth-
ing in response. (Diaz made these points at the conclusion of his report.43)
Irving Machleder, seventy-one years old, was greatly upset by the incident.
The federal courts declined to grant relief.
A theory of unwarranted intrusion was rejected because the interview had
been filmed “in a semi-public area, and [Machleder] was visible to the public
eye.” Only one incident had occurred; there had been no unabated hounding.44
For the same reason the broadcast did not improperly publicize private facts:
“Defendant [gave] further publicity to that which plaintiff [left] open to public
view.”45
The broadcast did not cast Machleder in a false light in showing him to be
“intemperate and evasive” because the broadcast had disclosed the truth about
Machleder’s demeanor. Moreover, in the court’s view the report was not highly
offensive.46
In sum, an elderly man can be targeted by an aggressive reporter and shown
on television as extremely upset about the unwanted confrontation even though
the reporter had no reason for accosting Machleder in the first place, and he
knew for certain at the time of the broadcast that Machleder had nothing to do
with the subject under investigation. What newsworthy purpose was served by
this exploitation of a vulnerable person innocent of any wrongdoing and having
no connection with the incident under discussion?47
B U L L Y I N G I S O N E WAY T O S P I C E U P A S T O R Y . Deceit is another. Beverly

Deteresa was an attendant on the flight O. J. Simpson took from Los Angeles to
Chicago the night of the murders of Nicole Brown Simpson and Ronald Goldman.
The trial of O. J. Simpson for those murders was one of the media events of the
1990s. At the time Anthony Radziwill was a reporter for ABC, and one week
after the flight he called on Deteresa and sought to have her appear on televi-
sion. She declined. But during a conversation with Radziwill on the doorstep of
her home she stated that contrary to the media reports she had heard, Simpson
had not kept his hand in a bag of ice during the flight. She also told Radziwill
how many passengers had been in first class and in which seat Simpson had sat.
Unknown to Deteresa, Radziwill audiotaped the entire conversation. In addi-
tion, a cameraman concealed in a car across the street videotaped the encounter.
Over Deteresa’s objection, ABC broadcast a five-second clip of the videotape in
reporting on the Deteresa conversation; no part of the audiotape was broad-
cast. A U.S. court of appeals rejected Deteresa’s claim that the audiotaping had
violated state and federal eavesdropping statutes and that the audiotaping and
videotaping had intruded on her privacy.48
As to the former, the court rejected out of hand Deteresa’s claim that she
had understood that the conversation was “off the record.” It ruled that “no one
in Deteresa’s shoes could reasonably expect that a reporter would not divulge
her account of where Simpson had sat on the flight and where he had or had not
kept his hand.” Accordingly, the conversation was not a confidential communi-
cation protected by the California eavesdropping statute.49 (On this the court
was dead wrong, misapplying the relevant California law.50)
The recording did not violate the federal wiretapping statute because it
came within an exception: Radziwill was a party to the communication, and the
conversation was not recorded for the purpose of committing any criminal or
tortious act.51
As to the intrusion on privacy, the court found only an “insubstantial im-
pact on privacy interests. . . . ABC videotaped Deteresa in public view from a
public place, broadcast only a five-second clip of the tape, and did not broadcast
either her name or [her] address. . . . Deteresa spoke voluntarily and freely with
an individual whom she knew was a reporter. [No] intimate details of anyone’s
life were recorded. No portion of what was recorded was ever broadcast.”52
The court’s opinion is wide of the mark. Deteresa did not object to publi-
cation of the information she had disclosed, which was indeed newsworthy. She
objected to surreptitious audiotaping and videotaping after she had expressly
declined to appear on television. In effect, ABC obtained an involuntary inter-
view under the guise of politely requesting a voluntary interview. What was
PA PA R A Z Z I 223
Deteresa to do? Slam the door in Radziwill’s face? Since the videotape and
audiotape had started to record even before Deteresa had opened the door,
could her words and image be captured as she slammed the door and then
conveyed as “intemperate and evasive” (as in the Machleder ambush interview)?
What legitimate journalistic purpose is served by allowing the media to obtain
an audiotape and videotape of a private person who is prepared to provide
newsworthy information but who expressly declines to appear on camera?
O N A U G U S T 3 1 , 1 9 9 7 , Princess Diana and her companion were killed

in a car crash in Paris. They were attempting to elude a group of photogra-
phers—in cars and on motorbikes—in pursuit of the car in which they were
riding. Their tragic deaths triggered public outrage and prompted calls for new
legal remedies in response to aggressive photojournalists.53 Proposed federal
legislation would make criminal “persistently physically following or chasing a
victim, in circumstances where the victim has a reasonable expectation of
privacy and has taken reasonable steps to insure that privacy, for the purpose
of capturing . . . a visual image, sound recording, or other physical impression
of the victim for profit.”54 Two state legislators proposed “safe zones” around all
public figures—ranging from fifteen to fifty feet—within which photographers
could not enter without consent. One would prohibit the use of telephoto
lenses to capture distant images.55
These proposals are unduly broad and almost certainly impracticable to
implement. But some limits on the excesses of photojournalism may be appro-
priate. In 1998, California enacted a more limited “Anti-Paparazzi” statute.
That statute and a more far-reaching proposal on the same point are considered
in Chapter 31.
Although the display of photographs is expressive activity protected by the
First Amendment,56 there is no judicial support for the proposition that a per-
son has a constitutional right to take a photograph of another over that person’s
objection.57 Restrictions on excessive journalistic surveillance were approved in
the Onassis and Wolfson cases.58 Machleder and Deteresa also appear to be appro-
priate cases for reining in the media.59 When private persons are not engaged in
any activity of public concern (for example, they are walking down a street or
standing in a doorway), what First Amendment expressive value is advanced in
permitting their pictures to be taken in the face of their expressed opposition?
To be sure, Deteresa had newsworthy information to impart, the reporting of
which was never in issue; her appearance in her doorway was not an activity of
public concern.
It was critical to the outcomes in Machleder and Deteresa that the filming
and taping had taken place on premises exposed to public view. The courts take
a stance more protective of privacy when the media cross the threshold and
enter an individual’s private premises or private space.
T H I R T Y - O N E
INTRUSIONS ON PRIVATE DOMAINS
D AV E A N D B R O W N I E M I L L E R L I V E D in a Los Angeles apartment. On October

30, 1979, Dave Miller collapsed onto the bedroom floor. Paramedics arrived in
response to an emergency call, administered CPR, and removed Miller to a
hospital. He subsequently died of the heart attack he had sustained. Unknown
to Mrs. Miller and without her consent, an NBC filming crew had arrived with
the paramedics and had left with them. Several weeks after her husband’s death,
Mrs. Miller was looking for a program on television and came across the NBC
film of the paramedics attending to her husband and removing him to the
hospital. She screamed and turned the television off. She received telephone
calls from family and friends who had seen the televised sequence; the calls
added to her distress. Mrs. Miller objected to NBC, stating that her husband
“was a very private person. He would never have liked anything like that to be
on television. . . . What nerve did you have to come into my home and invade
my privacy.”1
The California courts affirmed recoveries for Mrs. Miller on three grounds.
(1) The NBC film crew had trespassed in Mrs. Miller’s apartment by its unau-
thorized entry. (2) The intrusion was highly offensive, considering that Dave
Miller had not been a public figure and that the entry into the apartment oc-
curred at a time of emotional vulnerability. (3) For these reasons the showing of
the film constituted an intentional infliction of emotional distress on Mrs. Miller.
The First Amendment afforded no defense. In the courts’ view, unauthorized
entries upon private property were not necessary to further free expression.2
M A N D Y M E H R K E N S , A G E F I V E , and Jennifer and Amanda Whittle, ages eleven

and seven, respectively, were playing at Mandy’s house. No adults were at
home; Jennifer was “babysitting.” Mark Saxenmeyer, a KOVR-TV reporter,
interviewed the three children on camera; they were standing just inside the
door of the house. Saxenmeyer asked if they knew the Weber children next
door. The three acknowledged that they knew them, that they were nice, and
that they played with them all the time. In response to a question, the three
responded that they did not know what had happened to them. At this point
Saxenmeyer stated, “Well, the mom has killed the two little kids and herself.”
Amanda exclaimed, “Oh my God!” Saxenmeyer then asked whether the three
knew of any problems at the Webers, and they replied that they did not. After a
few more questions about the Webers, Saxenmeyer and his cameraman con-
cluded the interview.3
The Mehrkens and Whittles sued Saxenmeyer and KOVR-TV for inten-
tional infliction of emotional distress on the three children. A California appel-
late court held that they had a viable claim:
The videotape reveals an uninvited, intrusive encounter by adult strangers with
children of tender years not in a public place but in their home. . . . A jury could
conclude these facts reveal an alarming absence of sensitivity and civility. . . .
Plaintiffs argue . . . that the contents of the videotape are reasonably susceptible to
the inference that defendant was bent upon making news, not gathering it . . . in
the hope of eliciting a vividly emotional reaction and capturing it on videotape. . . .
[A] jury could find that a television reporter who attempts deliberately to
manipulate the emotions of young children for some perceived journalistic
advantage has engaged in conduct so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency.4
D AV I D S T O R M , an investigator for the Humane Society, executed a warrant to

enter the home of Barbara Anderson to investigate alleged cruelty to animals.
Over Anderson’s objections, a television camera crew accompanied Storm.
Anderson sued the film crew for trespass.5 A New York court struck defenses
based on the First Amendment and on a theory of implied consent. News
personnel “do not stand in any favored position with respect to news gathering
activity”; they have no “First Amendment immunity or special privilege to
invade the rights and liberties of others.”6 The court rejected an ad hoc test that
would have balanced the degree of intrusion against the newsworthiness of the
story. It also ruled that a suspicion of wrongdoing does not afford a privilege to
intrude. As to consent, the court found none—created by law or by custom—
that permits television cameras to enter private premises.7
I N T R U S I O N S O N P R I VAT E D O M A I N S 227
Intrusions of this character can expose government agents, as well as the me-
dia, to liability in damages. Mrs. Ayeni and her minor son were in her apartment
when government agents entered in executing a search warrant. CBS reporters
accompanied the agents, made recordings, and took pictures (the film was never
shown). The presence of the CBS crew invalidated an otherwise valid search, ex-
posing the government agents to potential liability for conducting a search in viola-
tion of Ayeni’s constitutional rights.8 As to the reporters: “CBS had no greater
right than that of a thief to be in the home, to take pictures and to remove the
photographic record. CBS claims no First Amendment right to be present.”9
Trespass on private property is important but not indispensable; other pri-
vate space is also protected. Dorothy Barber had an unusual ailment. Despite
consuming enormous amounts of food, she was losing weight. While hospital-
ized for treatment, she refused to agree to an interview or to pictures being
taken. Notwithstanding, a photographer surreptitiously took a picture of Bar-
ber, and Time magazine published both her picture and her name in an article
entitled “Starving Glutton.”10 In a 1942 opinion the Missouri Supreme Court
affirmed a recovery by Barber: “While plaintiff ’s ailment may have been a
matter of some public interest because unusual, certainly the identity of the
person who suffered this ailment is not.” The right of privacy precludes “publi-
cation of a picture taken without [a person’s] consent while ill or in bed for
treatment and recuperation.” The court emphasized the sensitive privacy inter-
ests associated with medical information.11
In a 1990 Missouri case, the facts were similar. Y.G. and L.G. were a
married couple participating in a program for in vitro fertilization at the Jewish
Hospital of St. Louis. They attended a social event at the hospital for program
participants on the assurance that it would be private. But a television camera
crew was present and filmed the couple over their objections; the film was
subsequently broadcast. The court ruled that plaintiffs had a triable claim for
public disclosure of private facts. Although in vitro fertilization was a newswor-
thy topic, the identities of the plaintiffs were not. Matters concerning indi-
vidual procreation decisions were within the private sphere. The couple’s atten-
dance at the social function, under the assurances given, did not constitute a
waiver of their right of privacy.12
Although Barber and Y.G. undoubtedly turned on the peculiarly personal
nature of the information at issue, in each case the court also emphasized the
intrusive nature of the media—venturing into a hospital room in Barber and
into a private social gathering in Y.G.
But it is not essential that the information be personal or that the premises
be a private habitat. In Le Mistral, Inc. v. CBS,13 a restaurant had been cited for
a health code violation. A CBS film crew entered the restaurant with lights
blazing and cameras rolling, disrupting the restaurant’s guests with its noisy and
obtrusive behavior. A New York court approved an award of compensatory
damages for trespass and remanded a punitive damages claim for further hear-
ings. In Stahl v. State,14 nine newspersons were convicted of criminal trespass
for accompanying protesters onto the grounds of a nuclear power plant con-
struction site despite express instructions by the company to stay out. An
Oklahoma court rejected a First Amendment defense. In Prahl v. Brosamle,15 a
television reporter accompanied police onto Prahl’s business premises to ob-
tain information and pictures on a report of shots fired from the building. A
Wisconsin court held that Prahl was entitled to nominal damages for the tres-
pass and also to damages for any business losses he could prove. Again, the
First Amendment was disallowed as a defense.
Although the media have a relatively free hand in public areas and other
unenclosed spaces exposed to public view, an intrusion into private property or
similar private space exposes the media to a variety of claims—including tres-
pass, intrusion, disclosure of private facts, and intentional infliction of emo-
tional distress. The courts are likely to be unyielding in condemning media
intrusions in cases of actionable trespass. In other, more marginal cases (like
the suits by the minors against KOVR-TV), the courts are likely to be more
flexible, according some weight to the significance of the news-gathering pro-
cess and tolerating at least some intrusions under a balancing approach.
The boundary between public space and private space is not always well-
defined. Albert Mark, a pharmacist, was suspected of Medicare fraud. A televi-
sion cameraman—finding the door to Mark’s pharmacy locked—walked up a
public driveway, placed his camera against the store window, and photographed
the interior. The film included a picture of Mark, who was talking on the
telephone.16 A Washington court rejected Mark’s privacy claim because the
intrusion was a “minimal one, [the televised film] lasted only 13 seconds, Mark
was not shown in any embarrassing positions, and his facial features were not
recognizable.” Further, “[T]he place from which the film was shot was open to
the public and thus any passerby could have viewed the scene recorded by the
camera.”17 The latter observation was disingenuous. The glimpse caught by a
passerby would be quite different from a sequence recorded by a camera pressed
against the window—particularly where, as in this case, the photographer had
used spotlights to illuminate the interior of the pharmacy. It is difficult to imag-
ine that a court would countenance similar photographic efforts directed against
the inhabitants of a private dwelling (aided perhaps by a telescopic lens).
I N J U N E 1990 R U T H S H U L M A N WA S I N J U R E D when a car in which she was

riding flew off the highway and tumbled down an embankment, coming to rest
upside down. She had to be extricated from the vehicle by a device known as
“the jaws of life.” A rescue helicopter was dispatched to the scene. Laura
Carnahan, the flight nurse, assisted Shulman while she was trapped in the car,
while she was being loaded into the helicopter on a stretcher, and while she was
being transported by helicopter to the hospital. Accompanying Nurse Carnahan
was Joel Cooke, a television reporter. Cooke roamed the accident scene video-
taping the rescue. In addition, Nurse Carnahan wore a wireless microphone
that picked up her conversations with Ruth and other rescue personnel. The
video and audio monitoring continued in the helicopter until arrival at the
hospital. The recordings were edited into a piece approximately nine minutes long
and broadcast as a segment of a program on emergency response operations.
Among the voices picked up by Carnahan’s microphone were Ruth’s com-
ments “I’m old”; “This is terrible. Am I dreaming?” “I just want to die. I don’t
want to go through this.” She also said she could not move her feet and that she
had no sensation in them.
The accident left Ruth a paraplegic. When Ruth saw the telecast she was
shocked. She felt she had been exploited, that her privacy had been invaded.
She had the impression from the broadcast “that I was kind of talking nonstop,
and I remember hearing some of the things I said, which were not very pleas-
ant.” She thought “the whole scene was pretty private. It was pretty gruesome,
the parts I saw. . . . I don’t feel it’s for the public to see. I was not at my best in
what I was thinking and what I was saying and what was being shown, and it’s
not for the public to see this trauma I was going through.”18
Ruth sued the broadcaster for public disclosure of private facts and for
intrusion on seclusion. On public disclosure the California Supreme Court
ruled for the broadcaster as a matter of law because the program was newswor-
thy and all of the portions broadcast were germane: “The challenged material
was . . . substantially relevant to the newsworthy subject matter of the broad-
cast,” and none of the broadcast material “was so lurid and sensational in
emotional tone, or so intensely personal in content, as to make its intrusive-
ness disproportionate to its relevance.”19 A dissenting opinion disagreed: “The
public has no legitimate interest in witnessing Ruth’s disorientation and de-
spair. Nor does it have any legitimate interest in knowing Ruth’s personal and
innermost thoughts immediately after sustaining injuries that rendered her a
paraplegic.”20
On the intrusion claim, the California court ruled that Ruth was entitled to
go to the jury on some but not all aspects of the incident. Two elements were
required: (1) intrusion into a private place, conversation, or matter; and (2) an
intrusion highly offensive to a reasonable person.
As to the accident scene, Cooke’s presence and filming of the events occur-
ring there did not intrude on Ruth’s seclusion. Ruth had no possessory rights to
the property where the accident took place. She could not reasonably have
expected “that members of the media would be excluded or prevented from
photographing the scene; for journalists to attend and record the scenes of
accidents and rescues is in no way unusual or unexpected.”21
But Ruth raised a triable issue as to whether she had a reasonable expecta-
tion of privacy in the helicopter: “[W]e are aware of no law or custom permit-
ting the press to ride in ambulances or enter hospital rooms during treatment
without the patient’s consent.” She also “was entitled to a degree of privacy in
her conversations with Carnahan and other medical rescuers at the accident
scene, and in Carnahan’s conversations conveying medical information concern-
ing Ruth to the hospital base.” Perhaps Cooke did not intrude in Ruth’s privacy
“merely by being present at a place where he could hear such conversations with
unaided ears. But by placing a microphone on Carnahan’s person, amplifying
and recording what she said and heard, defendants may have listened in on
conversations the parties reasonably could have expected to be private.”22
With respect to offensiveness, the court concluded:
[A] reasonable jury could find highly offensive the placement of a microphone on
a medical rescuer in order to intercept what would otherwise be private conversa-
tions with an injured patient. In that setting . . . the patient would not know her
words were being recorded and would not have occasion to ask about, and object
or consent to, recording. Defendants . . . took calculated advantages of the
patient’s vulnerability and confusion. . . . For the same reason, a jury could
reasonably regard entering and riding in an ambulance—whether on the ground
or in the air—with [a seriously injured patient] to be an egregious intrusion on a
place of expected seclusion. . . . A reasonable jury could conclude [that the story
did not] justify either placing a microphone on Nurse Carnahan or filming inside
the helicopter.23
The court did not pass on whether Ruth Shulman’s damages for intrusion
would include compensation for injury resulting from the publication of the
material gathered through the intrusion; that issue was not before the court.24
I N 1998, C A L I F O R N I A PA S S E D an “Anti-Paparrazi” statute.25 In addition to a

conventional provision on physical intrusions of a trespassory character, the act
prohibits “constructive invasion of privacy” that occurs
when the defendant attempts to capture, in a manner that is offensive to a

reasonable person, any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial activity under
circumstances in which the plaintiff had a reasonable expectation of privacy,
through use of a visual or auditory enhancing device, regardless of whether there is
a physical trespass, if this image, sound recording [or impression] could not have
been achieved without a trespass unless the visual or auditory enhancing device
was used.
A “personal or family activity” includes, but is not limited to, “intimate details
of plaintiff ’s personal life, interactions with the plaintiff ’s family or significant
others, or other aspects of plaintiff ’s private affairs or concerns.”
The enactment is incredibly narrow. Shulman and state and federal wire-
tapping statutes provide more comprehensive protection as regards audio trans-
missions. The only case in which this statute may prove helpful is where a
photographer, aided by a telephoto lens, takes pictures of the plaintiff while she
is in her own house or in some secluded spot on her own property.26 Much
more is needed to provide meaningful protection.
For purposes of photography, videotaping, and sound recording, the per-
spective of the casual passerby should be abandoned. The use of photography
and of magnifying, amplifying, and recording equipment is a quantum leap
from a casual glance. First, magnifying and amplification permit the capture of
images that could not be seen by the ordinary passerby, particularly matters of
detail that otherwise might appear as no more than a transient blur. Second,
photography and recording permit the perpetuation and reproduction of the
image for continuous study by the observer and by countless others extending
as far into the future as the technology allows—something far beyond the con-
sequences associated with a casual glance. Some examples:
1. Kimberly Foster was exercising in a health spa in old sweatpants; her hair was
uncombed. Without her knowledge or consent, she was videotaped; subse-
quently, a brief profile of her doing leg lifts appeared in a televised commercial
for the spa. Foster’s claim for intrusion on privacy was rejected because “the
filming was not in plaintiff ’s home or in a private setting where other persons
were expected to be excluded.”27
2. Linda Borton, an employee of Unisys Corporation, was on a boat ride

sponsored by the company. A photographer was taking informal pictures of
the participants. As the photographer focused on Borton, another Unisys
employee, Michael Beaton, approached Borton from behind, reached around
her, and cupped his hands over her breasts just as the photograph was being
taken. Borton was angry about Beaton’s unwanted affront and even more
upset when she found that the photograph was being shown repeatedly for
the entertainment of company officers and employees. Her action for intrusion
on privacy was rejected because the action occurred in a public place, and
Borton did not assert that “any part of [her] body that she normally conceals
was revealed to the public.”28
3. Kathy Solomon was the former wife of Jerry Solomon. Jerry left Kathy to
marry Nancy Kerrigan, a famous figure skater. The National Enquirer pub-
lished a story about Kathy’s supposed resentments and published a picture of
her standing at the second-floor window of her bedroom. Her suit for
intrusion was rejected because she took no “steps to conceal herself from
uninvited eyes.”29
The incidents involving Kimberly Foster, Linda Borton, and Kathy Solomon
were observable from a vantage point from which the public had not been
excluded. Yet none of the women had consented to be photographed, and none
had been participating in a newsworthy event. Why should their images be
captured for all to view simply because each had been photographed at an
unguarded moment?
At the heart of the matter is our anomalous approach to photography. In
related areas, the legal system is much more protective of personal privacy.
At common law a person’s private papers could not be published without
his consent. Under the present Copyright Act, virtually complete control is
vested in the writer of unpublished papers for an extended period of time (life
plus seventy years).30 Similarly, the contents of private correspondence may not
be published without the writer’s consent. The recipient of a letter owns the
physical document. But with limited exceptions, the writer has exclusive con-
trol over the reproduction, dissemination, and display of his expression.31
An individual’s voice may not be recorded by a person not a party to a
private conversation. Under state and federal wiretap statutes, where the private
conversation occurs—in a hallway or in a public park—is irrelevant as long as
the speaker has a reasonable expectation of privacy.32 In many states a person’s
voice may not be recorded even by the other party to the conversation without
the speaker’s consent (the federal wiretap statute does not normally preclude
such a recording).33
All of these restrictions apply without regard to the status or identity of the
writer or speaker and without regard to the contents of his expression. By
contrast, anyone can take a photograph of anyone else, preserve it in perpetuity,
and—with limited exceptions—reproduce, publish, and display it for all the
world to see. Unlike the private writing, the private letter, and the private oral
expression, the subject’s consent is not required and the subject’s expectations
are ignored as long as the photograph (or videotape) is taken from a public
vantage point. To state the matter differently, the property interest in private
written and oral expressions is vested in the source; the property interest in the
subject’s image is vested in the photographer.
The assignments of property interests in private written and oral expres-
sions are socially desirable and economically efficient. The assignment of prop-
erty rights in images is not. The advantage of the normal expressive allocation is
that a single person—the writer or speaker—is vested with exclusive control. If
anyone else wants access, negotiations are feasible. The originator’s consent
may be obtained freely or for a price. But in either event the originator is in a
position to make decisions that are acceptable from the perspective of personal
autonomy and economic advantage.
But in the case of photographs, there is no one with whom the subject can
deal in advance of the event. A prospective subject would have to buy off the
entire world to avoid the camera or videotape—an obvious impossibility. It is
irrelevant how highly a person prizes his privacy. To avoid the camera, that
person must remain in seclusion, stay behind high fences, and wear concealing
clothing (robes and masks) whenever he ventures onto public domains. Even
after a photograph is taken, any negotiations that occur take on all of the sordid
and dangerous implications of blackmail. Photographers get roughed up, cam-
eras are smashed, subjects become emotionally distraught.
If property rights were reallocated to the subject of the photograph, the
legal landscape changes. If consent is required, civility is possible. Public fig-
ures are generally interested in publicity and would be inclined to collaborate
with photographers; most private persons are happy to see their pictures in the
paper. But the individual would have a choice. Anyone placing a high value on
privacy could veto photographs or negotiate for a price that would ease the
pain. The publicity seekers would be no worse off, and the photography busi-
ness—although compelled to behave in a more civilized manner—would con-
tinue to flourish.
This proposed property right, like all property rights, would not be absolute.
At least two qualifications are necessary (and others may prove appropriate).
First, a person cannot prevent his inclusion in a photograph in which he is
not a principal subject. Photographers can continue to take pictures of parades
and other public events, street scenes, and other group activities without ob-
taining the consent of all participants. This qualification is justified by the
prohibitive transaction costs associated with obtaining multiple consents. Whether
a person is “a principal subject” in a particular case is essentially a pragmatic
decision rooted in the reason for the exception: Was the person the only princi-
pal focus of the picture, or was he a member of a group so small that a personal
approach to the person to obtain his consent would have been practicable? If so,
consent must be obtained.
Second, photographers, like other news media, must be able to report on
newsworthy events. Photographers at the scene of an accident, crime, arrest, or
other incident of public concern cannot be inhibited by the participants’ wishes.
No consents are required. Similarly, persons who appear in public to make a
statement—by delivering a speech or marching in a parade or wearing a bizarre
costume—cannot shrink from the camera. But not every picture of public in-
terest is encompassed by the proposed exception. A picture of a distressed
individual may aptly illustrate a story about poverty or housing or health care
financing; but if the particular person is selected as an example, perhaps be-
cause of the photographer’s aesthetic judgment about the picture’s suitability
for the story, consent must be obtained. The needs of the news media do not
require the conscription of unwilling “poster” subjects even for worthy causes.
A similar analysis appears in a recent decision of the Supreme Court of
Canada. Pascale Claude Aubry, a seventeen-year-old girl, was seated in front of
a building on a Montreal street. Unknown to her, a photographer snapped her
picture. Subsequently, the picture appeared in a magazine devoted to the arts as
an illustration of contemporary urban life. The magazine was a prestigious one
with a large circulation. There was nothing defamatory about the picture or the
context in which it was exhibited. Aubry had been in a public place when the
picture was taken. Even so, the Court ruled that publication of the picture
violated Aubry’s right to privacy under the Quebec Charter of Rights, which
provides that every person “has a right to respect for his private life.” The
charter also recognizes the right of freedom of expression, and the Court con-
ceded that the right of privacy must yield when the person photographed is a
public personality or is involved in a newsworthy event or is present in a crowd
or at some other locus and is not the principal subject of the photograph. In
other cases, even though freedom of expression encompasses artistic expres-
sion, the right to privacy prevails: “[T]he right to manage one’s image is based
on the idea of individual autonomy, that is, the control each person has over his
or her identity.” Aubry recovered $2,000 in compensatory damages based on
her testimony that she had been embarrassed by the teasing of her teenage
friends: “[P]eople laughed at me.”34
T H E T R E AT M E N T O F P U B L I C F I G U R E S under the analysis set forth in this chap-

ter poses some difficulty. One could follow the lead of the Canadian Supreme
Court and say that anything a public figure does—at least in a public sphere—
is fair game for the photographer. A presumption to this effect is probably

justified. But even public figures deserve some respite from the glare of public-
ity. Reporters are not privileged to capture the private expressions of public
figures by rifling through their papers, gaining access to their mail, or employ-
ing electronic devices to eavesdrop on their private conversations (even those
that occur in a public place). When a public figure is not engaged in a newswor-
thy event and has made manifest his or her wish to be left alone, the presump-
tion of accessibility is rebutted, and no reason of public policy requires that the
subject’s interest in his or her personal image be overriden.
The proposed regime does not adversely affect any First Amendment con-
cerns. Even the tabloids would survive. For noncelebrities—the spurned lover,
the participant in a freak event—the subject may well consent to be photo-
graphed. If not, the tabloids can always fabricate pictures to accompany (fre-
quently) fabricated stories. For celebrities, numerous pictures are in the public
domain or under the control of persons other than the celebrity. For an article
about Liz Taylor or O. J. Simpson, any likeness will attract attention. Second,
celebrities are often interested in publicity and would be prepared to cooperate;
a scandal or a sensationalized story may attract attention to a newcomer or
revive a flagging career. Finally, photographers have the benefit of a rebuttable
presumption that public persons appearing in public places consent to be pho-
tographed. That presumption is unlikely to be rebutted in the normal day-to-
day activities of a celebrity appearing in public—to attend a performance or to
participate at a public gathering—unless the celebrity goes to extraordinary
lengths to make obvious the absence of consent. But if a celebrity makes a dash
to a waiting automobile saying “No pictures, please,” any continuation of pho-
tographic efforts is unlawful.
If a public figure can control the pictures of her that the press may take and
exhibit by exercising a veto, she may seek to manipulate her public persona by
allowing only those pictures that show her to advantage while vetoing those that
cast a different, less favorable light.35 This attempt at misrepresentation cannot
be countenanced. It can be addressed by recognizing that the purpose of the
protection at issue is to protect the public figure’s privacy; it has no application
to newsworthy appearances of the public figure or to other day-to-day occasions
as to which the public figure has not expressly rebutted the legal presumption of
consent.
The photograph stands alone as the only aspect of an individual’s personal-
ity that is not vested in the individual. It is a classic misallocation of property
rights with all the usual harmful consequences of misallocation. A reallocation
of rights would preclude the outrageous impositions in Foster, Borton, and Solomon
and would resolve most of the troublesome cases discussed in Chapter 30—Gill
(the married couple embracing in public), Fogel (the tourists in the Miami
airport), McNamara (the soccer player with exposed genitalia), Lowe (the con-
vict in prison garb), Machleder (the elderly gentlemen upset by an “ambush
interview”), and Deteresa (the reluctant subject deceived into giving a video-
taped interview). In none of these cases is it necessary to ask whether a trespass
has occurred. (In fact, none had occurred in any of these cases.) Nor is it
necessary to ask whether the plaintiffs in these cases had a reasonable expecta-
tion of privacy or whether the defendants acted in a manner offensive to a
reasonable person. The assignment of property rights to a person with respect
to his or her image disposes of both issues—unless an exception applies for
public gatherings or newsworthy events.
A movement in this direction would achieve a more comprehensive and
meaningful recognition of the right to privacy envisaged by Warren and Brandeis
over a hundred years ago.
BROKEN PROMISES 237
T H I R T Y - T W O
BROKEN PROMISES
D AN C O H E N WA S AN A C T I V E R E P U B L I C A N associated with Wheelock Whitney’s

1982 campaign for governor of Minnesota. Marlene Johnson was the Democratic-
Farmer-Labor candidate for lieutenant governor. Cohen approached reporters for
the Minneapolis Star & Tribune and the St. Paul Pioneer Press Dispatch with an
offer to provide documents relating to a candidate in the upcoming election—
but only if he were given a promise of confidentiality. Reporters from both
newspapers promised to keep Cohen’s identity a secret, and Cohen turned over
court records showing that Johnson had been charged with three counts of
unlawful assembly in 1969 and that she had been convicted of petit theft in
1970.
When the newspapers investigated, it turned out that the unlawful assembly
charges arose out of Johnson’s participation in a civil-rights protest; the charges
were eventually dropped. The petit theft conviction was for leaving a store
without paying for six dollars’ worth of sewing materials; the incident occurred
at a time when Johnson was emotionally distraught. The conviction was later
vacated.
The two newspapers decided to run the stories about Johnson’s previous
encounters with the law. But they also identified Cohen as the source of the
court records, indicated his connection to the Whitney campaign, and included
denials by Whitney campaign officials that they had any role in the matter. The
day the stories appeared, Cohen was fired by his employer.1
Cohen sued the publishers of the Star Tribune and the Pioneer Press on
several theories, recovering $700,000 in compensatory and punitive damages.
The Minnesota appellate courts rejected the punitive damages award on state
grounds, and the Minnesota Supreme Court ruled that a claim for breach of
contract was inappropriate because the parties had not intended a legally bind-
ing commitment. But the Minnesota Supreme Court found that a “promissory
estoppel” claim was tenable. Under this approach a promise is enforceable—
even in the absence of a contract—if it is expected to induce action, if action is
indeed induced in reliance on the promise, and if injustice can be avoided only
by enforcing the promise. In this case Cohen’s disclosure had been induced by
the promise of confidentiality and would not have been forthcoming absent the
promise; the newspapers’ breach of that promise had cost Cohen his job and
diminished his future earning prospects. Even so, the Minnesota Supreme Court
denied relief because enforcement of the promise in this case would infringe on
the newspapers’ First Amendment rights to publish truthful information about a
matter of public concern.2
In a 1991 decision the U.S. Supreme Court reversed. It ruled that this case
was controlled by a “line of decision holding that generally applicable laws do
not offend the First Amendment simply because their enforcement against the
press has incidental effects on its ability to gather and report the news.”3 For
example, the
press may not with impunity break and enter an office or dwelling to gather news.
. . . [T]he Minnesota doctrine of promissory estoppel is a law of general applicabil-
ity. It does not target or single out the press. . . . Minnesota law simply requires
those making promises to keep them. The parties themselves, as in this case,
determine the scope of their legal obligations, and any restrictions that may be
placed on the publication of truthful information are self-imposed.4
In sum, the First Amendment does not preclude the press from being held
accountable for breaking promises. The payment of compensatory damages for
breach “is constitutionally indistinguishable from a generous bonus paid to a
confidential news source.”5
The Supreme Court observed that Cohen was not attempting to use a
promissory estoppel claim to avoid the strict requirements for establishing a
libel or defamation claim. The published material was true. “Cohen [was] not
seeking damages for injury to his reputation or peace of mind” but for eco-
nomic losses. Thus this case was not governed by Hustler Magazine v. Falwell,6
discussed in Chapters 12 and 17, applying constitutional law libel standards to
a parody challenged as intentional infliction of emotional distress.7
On remand, the Minnesota Supreme Court sustained an award to Cohen
of $200,000 in compensatory damages.8
BROKEN PROMISES 239
F R E D E R I C K W I S E M A N M A D E A F I L M entitled Titicut Follies. It concerned con-

ditions in a Massachusetts mental institution, and it depicted inmates naked
and in distressing situations. On suit by the state, the Supreme Judicial Court
of Massachusetts enjoined general showings of the film while permitting it to be
shown to specialists in the field of mental health (doctors, lawyers, social work-
ers, and the like). The principal basis of decision was that Wiseman had vio-
lated conditions reasonably exacted by the state to protect the privacy of the
institutionalized patients. He had agreed to obtain releases from the patients.
But in some cases he had obtained no releases, in other instances the patients
had not been competent, and in still others the court considered the releases
inadequate because they had been obtained before the affected patients had
seen the film—which showed “many inmates in situations which would be
degrading to a person of normal mentality and sensitivity.”9
The court conceded that the film raised matters of public concern about
conditions at the mental institution.
[But this concern] would not necessitate the inclusion of some episodes shown in
the film, nor would it justify the depiction of identifiable inmates, who had not
given valid written consents and releases, naked or in other embarrassing situa-
tions. . . . Recognizable pictures of individuals, although perhaps resulting in more
effective photography, were not essential.10
Wiseman was decided in 1969, long before Cohen. The U.S. Supreme
Court declined to review the case. In 1991, the year of the Cohen decision, a
judge lifted the injunction, and Titicut Follies was made available to the general
public.
F O L L O W I N G T H E R U L I N G I N C O H E N , media promises have been held to be

actionable under a number of theories.
1. Jill Ruzicka had been sexually abused by her therapist. She agreed to participate
with Glamour magazine in writing an article about the sexual abuse of patients
by their therapists. Glamour promised that Ruzicka would not be identified or
identifiable. Ruzicka’s claim that Glamour had breached its promise was set for
trial on a theory of promissory estoppel.11
2. Kubach, an AIDS victim, agreed to appear on a televised talk show on WMAZ.

In violation of its promise, WMAZ failed to disguise Kubach’s appearance, and
many people recognized him. The breach was held to be actionable as an
unjustified invasion of privacy. The case was remanded to resolve several issues
concerning prebroadcast publicity about Kubach’s condition (which might

undercut his claim).12
3. Raymond Veilleux operated a trucking company. NBC enlisted his participation

in preparing a program about unsafe conditions in the trucking industry. In
return, Veilleux obtained an assurance that an antitrucking group would not be
participating in the program. NBC breached its commitment. A U.S. court of
appeals ruled that Veilleux had a tenable claim for misrepresentation, relying on
the reasoning of Cohen.13
4. “Jane Doe” agreed to provide Univision Television with pictures and informa-
tion about a botched plastic surgery procedure on condition that her face and
voice be disguised. Univision failed to keep its promise. Jane Doe was recog-
nized, and she sustained emotional distress. The court found a triable issue on
public disclosure of private facts and also remanded for further consideration
Doe’s claims for breach of contract and for promissory estoppel.14
In each of these cases, the court conceded that the topic addressed was one
of legitimate public concern. But identification of the person depicted had been
precluded by the media’s promise.
Not all courts have received Cohen with enthusiasm. One construed a con-
tract narrowly to avoid any interference with the free flow of information; it
observed that the promise in Cohen had been more explicit.15 Another seized on
the fact that plaintiff was seeking damages for emotional distress for breach of
a promise of confidentiality; Cohen, the court believed, was limited to instances
of economic loss.16 The ruling is obviously erroneous. For many individuals the
whole point of obtaining a commitment of confidentiality is to avoid personal
embarrassment, as in the Ruzicka, Kubach, and Jane Doe cases.
Cohen is a relatively recent decision. Its implications have not been exten-
sively explored either by the lower courts or by the practicing bar. In Deteresa,17
for example, discussed in Chapter 30, a flight attendant claimed her comments
about O. J. Simpson were supposed to be “off the record”; the court of appeals
rejected her claim without citing or discussing Cohen.
A L L O F T H E S E C A S E S I N V O L V E P R O M I S E S by the media. Enforcement of such

promises normally enhances the media’s credibility in negotiating with sources
and thus facilitates the news-gathering aspects of journalistic expression. Since
the media have control over the terms of their promises, they are well posi-
tioned to determine whether in particular cases inhibitory promises will ad-
vance or restrict their journalistic mission. The courts need not intervene under
the aegis of the First Amendment. The media can protect themselves against
BROKEN PROMISES 241
possibly improvident promises by exercising care in the promises they make.

Or they may subsequently conclude that breach of an improvident promise is
“efficient”—that is, the journalistic value of the disclosure exceeds the expected
award of damages to the injured party, which may be viewed as equivalent to “a
generous bonus paid to a confidential news source” (to use the words of Cohen).
By contrast, an action for specific performance of a promise of confidentiality
raises the troublesome issue of imposing a restraint prior to publication; in this
context the media may have some prospect of success in resisting an inhibitory
decree.18
But very different issues are posed if the promises at issue are in agree-
ments to which the media are not parties. This problem is illuminated by an
episode involving the CBS television program 60 Minutes. In October 1995
CBS scheduled an interview with Jeffrey Wigand, a former executive of Brown
& Williamson Tobacco Corporation. Wigand was prepared to discuss a num-
ber of incidents of questionable conduct by his former employer, including
allegations that Brown & Williamson had knowingly added a carcinogenic agent
to flavor its cigarettes, that the company had abandoned plans to develop a
safer cigarette and had altered documents pertaining to the project, and that
one of the company’s officers had lied in testimony before a congressional
committee. Brown & Williamson informed CBS that if Wigand gave the inter-
view he would breach a confidentiality agreement with the company, and Brown
& Williamson would sue CBS for inducing that breach of contract. Fearing
substantial liability, CBS capitulated and canceled the program. Among factors
cited in its determination, CBS relied on its payment of a consultant’s fee to
Wigand in connection with a prior tobacco story and its agreement to indem-
nify Wigand if he were sued by Brown & Williamson in connection with this
story. No legal action was brought against CBS in connection with the episode;
the interview was subsequently aired after disclosure had been made in other
media.19
The next year a New York court concluded that the media could not be
sued for interference with contractual relations. Maury Povitch, a talk show
host—fully aware of a confidentiality agreement in a matrimonial case—allowed a
disgruntled spouse to disclose information on his show in violation of that
agreement. Said the court: “[A] broadcaster whose motive and conduct is in-
tended to foster public awareness and debate cannot be found to have engaged
in the wrongful or improper conduct required to sustain a claim for interfer-
ence with contractual relations.”20 In Povitch the broadcaster had offered no
inducement of any sort; the disgruntled spouse had taken the initiative.
P R O M I S E S O F C O N F I D E N T I A L I T Y serve important social functions and nor-

mally should be adhered to by the parties and respected by others. For example,
in Cherne Industrial, Inc. v. Grounds & Associates,21 a Minnesota court enjoined
former employees from competing for their former employer’s customers in
violation of an agreement designed to protect the confidentiality of the employer’s
customer list. The employees’ reliance on the First Amendment was rejected:
“The purpose of the contract was to protect plaintiff ’s legitimate business inter-
est in the information it had developed. . . . [A] former employee’s use of
confidential information or trade secrets of his employer in violation of a con-
tractual or fiduciary duty is not protected by the First Amendment.”22
In cases involving breach of trust and divulgence of trade secrets, courts
routinely enter preliminary and permanent injunctions against both improper
disclosures and unauthorized uses by culpable recipients.23 These cases do not
involve the media, but they point the way.
First, the promise at issue must serve a legitimate social purpose consistent
with public policy. Some promises—such as promises to conceal crimes—are held
to be contrary to public policy and are not enforceable even against the promisor.24
The Restatement of Torts provides: “Illegal agreements and those in violation of
public policy are commonly held to be void and so not contracts at all.” Interfer-
ence with their performance cannot be successfully challenged in the courts.25
Second, a promise that serves a legitimate social purpose is normally en-
forceable against any person who obtains information in violation of the prom-
ise. The parameters of accountability extend to all who knowingly participate in
improper dissemination of information violative of the agreement. That is the
rule governing the improper dissemination of trade secrets;26 a similar rule
precludes virtually all unauthorized publications of unpublished manuscripts.27
In such cases the promise of confidentiality is generally binding on all who have
knowledge of the promise—without regard to how they came to possess the
safeguarded information.28
Finally, some promises of confidentiality that are normally enforceable (for
example, promises not to disclose trade secrets) may have to yield in particular
cases to an overriding public or private interest.29 Conduct need not be crimi-
nal to pose a serious threat to health, safety, or welfare. When an initially in-
nocuous promise is employed to deprive persons of information important to
their well-being, the balance shifts in favor of disclosure. Proprietary informa-
tion should be protected to the greatest extent possible, but interested parties
cannot be deprived of information threatening detrimental consequences.
For example, Charles Lachman and associates operated an oil and gas well
in Oklahoma. They contracted with Sperry–Sun Well Surveying for a direc-
BROKEN PROMISES 243
tional survey of their well; the Lachman-Sperry contract bound Sperry to dis-
close its findings to Lachman and no one else. Sperry discovered that Lachman’s
well was drilling into neighboring tracts, unlawfully extracting the oil and gas of
others. Sperry informed Lachman of its finding, but Lachman continued its
operations undeterred. Sperry then notified Lachman’s neighbors; they sued
Lachman and recovered damages for the wrongfully extracted minerals. Lachman
then sued Sperry for breach of its promise of confidentiality. A U.S. court of
appeals entered judgment for Sperry.30
The court explained that Lachman’s conduct may or may not have been
criminal, depending on whether he knew of the illegality of extracting the neigh-
bors’ minerals and continued the misappropriation for a substantial period after
acquiring knowledge of the illegality. But criminal behavior by Lachman was
not required to free Sperry from its promise of confidentiality.
The distinction between a crime and a mere tort can often, as here, be a difference
brought about by time and knowledge. In the present case, [Sperry] may
reasonably have felt that in adhering to the terms of its contract . . . it was silently
watching a crime being committed or facts developing into such an act. . . . [T]he
non-disclosure contemplated by the contract, and the relationship created by it
was proper and enforceable, but here circumstances developed to cause public
policy to intervene to prevent enforcement of all of the silence.31
The Restatement of Unfair Competition takes an even broader position:
The existence of a privilege to disclose another’s trade secret . . . is likely to be
recognized . . . in connection with the disclosure of information that is relevant to
public health or safety, or to the commission of a crime or tort, or to other matters
of substantial public concern. . . . [T]he policies are similar to those supporting . . .
“whistleblower” statutes [that protect employees from retaliation in cases of
disclosure of wrongdoing].32
Viewed from this perspective, both CBS and Povitch got it wrong. Some of
Wigand’s allegations concerned criminal behavior by Brown & Williamson person-
nel (perjury before a congressional committee), and some concerned behavior that
was both unlawful and a threat to public health (the addition of carcinogenic
flavoring to cigarettes). Wigand was privileged to make these disclosures to the
authorities, to the public directly, or to the media—subject only to liability for
deliberate or reckless falsehoods. Similarly, the media were free to further pub-
licize these allegations—regardless of whether they had offered inducements for
the disclosures. Everyone, including Wigand, was free to make disclosures of
criminal, unlawful, or dangerous conduct.33
In Povitch, by contrast, no reason is apparent why the confidentiality agree-
ment should not have been respected. It did not conceal criminal or unlawful
behavior or anything bearing on the public’s welfare or the interests of persons

not parties to the contract. Responding to curiosity may be an acceptable basis
for disclosure in the usual case, but protecting legitimate contractual expecta-
tions should take priority absent a pressing public or private need. (On the facts
of Povitch, the outcome reached may have been appropriate in view of prior
disclosures by the disgruntled spouse that had vitiated the confidentiality of the
settlement, but the basis of decision articulated by the court was over-broad and
unjustified.)
In sum, if the promise of confidentiality is one the law is prepared to
respect and enforce as between the parties, others should generally be precluded
from knowingly participating in, or contributing to, a breach. That includes the
media. But the media and everyone else (including the promisor) has standing
to challenge the enforceability of any promise that contravenes the public’s
interest in being apprised of criminal behavior or other conduct detrimental to
public health, safety, or welfare.34 Furthermore, unauthorized disclosures of
trade secrets by media personnel not themselves in breach of trust may not be
enjoined in advance of publication in view of the very strict standards appli-
cable to prior restraints.35
In 1996 Congress passed the Economic Espionage Act imposing signifi-
cant criminal penalties on the theft of trade secrets. The statute by its terms
requires that the illicit appropriation, transmission, and receipt of a trade se-
cret be for “the economic benefit of anyone other than the owner” of the trade
secret.36 Whether the act would apply to the types of disclosures discussed in
this chapter is questionable, but the exceptions are more circumscribed than
those recognized at common law. The only statutory exceptions are (1) lawful
activities by a government entity and (2) the reporting of violations of the law to
an appropriate government entity.37 The legislation has yet to be interpreted and
applied.
T H E I S S U E O F I N D U C E M E N T O F B R E A C H O F C O N T R A C T has attracted scant

attention in the context of the First Amendment. But the accommodations
achieved under the laws of contracts, torts, and unfair competition appear fully
consistent with the expressive values at the heart of the First Amendment.
When a contractual commitment is a promise by the media enterprise itself, no
similar accommodation is necessary. The media enterprise controls the terms
of its contract; it similarly controls the fact of breach—in the latter instance
deciding whether the penalty for breaking its own promise is outweighed by the
news value of the story it wishes to tell.
T H I R T Y - T H R E E
DECEPTION AND SUBTERFUGE
A. A. D I E T E M A N N , A J O U R N E Y M A N P L U M B E R , claimed to be a scientist. In
his home he “engaged in the practice of healing with clay, minerals, and herbs—
as practiced, simple quackery. He had no listings and his home had no sign of
any kind. He did not advertise, nor did he have a telephone. He made no
charges when he attempted to diagnose or to prescribe herbs and minerals. He
did accept contributions.”1
In 1963 Mrs. Jackie Metcalf and Mr. William Ray, two reporters from
Life magazine, went to Dietemann’s home under an arrangement with the Los
Angeles district attorney. They gained admission to the house by providing a
false referral and were shown into Dietemann’s den. Dietemann “had some
equipment which could best be described as gadgets, not equipment which had
anything to do with the practice of medicine.” Metcalf provided some false
symptoms, and Dietemann proceeded to examine her. He was photographed
with a hidden camera, and one of the pictures that subsequently appeared in
Life showed him “with his hand on the upper portion of Mrs. Metcalf ’s breast
while he was looking at some gadgets and holding what appeared to be a wand
in his right hand.” The conversation between Dietemann and Metcalf was
transmitted by a hidden radio transmitter to a parked automobile outside;
portions were referred to in the Life article. The article depicted Dietemann as
a quack and reported that he had been arrested for practicing medicine with-
out a license.2
A U.S. court of appeals, writing in 1971, held that Metcalf and Ray had
unlawfully intruded into Dietemann’s den.
One who invites another to his home or office takes a risk that the visitor may
not be what he seems, and that the visitor may repeat all he hears and
observes when he leaves. But he does not and should not be required to take
the risk that what is heard and seen will be transmitted by photograph or
recording, or in our modern world, in full living color and hi-fi to the public
at large or to any segment of it that the visitor may select.3
The First Amendment did not call for a different outcome:

We agree that newsgathering is an integral part of news dissemination. We
strongly disagree, however, that the [hidden camera and concealed electron-
ics] are “indispensable tools of newsgathering.” . . . The First Amendment has
never been construed to accord newsmen immunity from torts or crimes
committed in the course of newsgathering. The First Amendment is not a
license to trespass, to steal, or to intrude by electronic means into the precincts
of another’s home or office.4
Finally, the court ruled that damages may include additional emotional
distress suffered by a plaintiff when the wrongfully acquired data are purveyed
to the multitude. Such damages chill intrusive acts, not freedom of expression.5
Dietemann was awarded $1,000.
M O R E T H A N T W E N T Y - F I V E Y E A R S L AT E R another court of appeals ruled on a

similar case. Dr. J. H. Desnick operated twenty-five offices—Desnick Eye Cen-
ters—in four midwestern states. These offices performed more than 10,000
cataract operations a year, mostly on elderly persons whose cataract surgery was
covered by Medicare. ABC contacted Dr. Desnick about doing a program on
cataract surgery. ABC promised that the program would not involve ambush
interviews or undercover surveillance and that it would be fair and balanced.
Thus reassured, Dr. Desnick allowed an ABC crew to videotape a clinic in
Illinois, to film a cataract operation, and to interview doctors, patients, and
technicians. Desnick also gave ABC a videotape explaining the clinics’ services.
Unknown to Desnick, ABC had dispatched seven persons with concealed
cameras to two Desnick Eye Centers in Indiana and Wisconsin. Posing as
patients, they requested eye examinations. The tests were secretly videotaped.
The two persons who were under sixty-five and thus not eligible for Medicare
reimbursement were told they did not need eye surgery. Four of the other five
were told they did need surgery. In fact, none of them required eye surgery.
The program included other adverse reports on the Desnick clinics by
former patients and employees. It also reported that Dr. Desnick had been
charged with multiple counts of malpractice and deception. An ambush inter-
DECEPTION AND SUBTERFUGE 247
view occurred at an airport. An ABC reporter charged that Dr. Desnick had
altered medical records and tampered with diagnostic equipment: “Is that cor-
rect? Doctor, why won’t you respond to my questions?”6
With respect to the Wisconsin and Indiana offices, Dr. Desnick asserted
claims of trespass, invasion of privacy, and violation of federal and state wire-
tapping statutes. With respect to the Illinois office, Dr. Desnick claimed fraud
stemming from ABC’s false promises to present a fair and balanced picture of
his operations and to refrain from the use of ambush interviews and undercover
surveillance. A U.S. court of appeals rejected all of these claims.
As to trespass, the court observed that “consent to an entry is often given
legal effect even though the entrant has intentions that if known to the owner of
the property would cause him . . . to revoke his consent.” The court cited as
examples the restaurant critic ordering a meal, the browser in a store uninter-
ested in buying, and “testers” posing as prospective home buyers to gather
evidence of housing discrimination. In the Desnick case there was no invasion
of any of the interests the law of trespass seeks to protect: “[I]t was not an
interference with the ownership or possession of land. . . . The test patients
entered offices that were open to anyone expressing a desire for ophthalmic
services and videotaped physicians engaged in professional, not personal, com-
munications with strangers (the testers themselves). The activities of the offices
were not disrupted.”7 Dietemann was distinguished because the intrusion there
was into a home: “Dietemann was not in business and did not advertise his
services or charge for them. His quackery was private.”8
As to privacy, the court observed: “No embarrassingly intimate details of
anybody’s life were publicized in the present case. There was no eavesdropping
on a private conversation; the testers recorded their own conversations with the
Desnick Eye Center’s physicians.”9 The relevant wiretapping statutes were not
violated because the parties on one side of the conversations—the “testers”—
consented to the recording.10
On the fraud allegation, the court made two observations: (1) Illinois law
did not recognize a fraud action premised on false promises, at least not on the
facts here presented. And (2) Desnick had not been harmed by the false prom-
ises because “none of the negative parts of the broadcast segment were sup-
plied by the visit to the Chicago premises or came out of the informational
telecast, and Desnick could not have prevented the ambush interview or the
undercover surveillance. The so-called fraud was harmless.”11 More broadly, the
court observed:
Investigative journalists well known for ruthlessness promise to wear kid
gloves. They break their promise, as any person of normal sophistication
would expect. If that is “fraud,” it is the kind against which potential victims
can easily arm themselves by maintaining a minimum of skepticism about
journalistic goals and methods. [Absent a violation of law,] the target has no
legal remedy even if the investigatory tactics used by the network are
surreptitious, confrontational, unscrupulous, and ungentlemanly.12
The court acknowledged that the media had no general immunity from contract
liability, but it pointed out that Desnick had abandoned his claim for breach of
contract.13
C O U R T S H AV E G E N E R A L L Y F O L L O W E D D I E T E M A N N when the deception ac-

companies an intrusion into the home or a prying into domestic affairs. Desnick
reflects the dominant view when the deception pertains to business matters.
1. In the aftermath of a domestic dispute, a Mobile Crisis Intervention Team
entered the Baugh household and had discussions with Yolanda, the wife,
and Danielle, her daughter. A CBS camera crew accompanied the crisis
team officers and taped and photographed the conversations. The crew
members gained access to the premises by representing that they were
adjuncts of the crisis team and that their film was for training purposes, not
to be shown on television. The film subsequently appeared on television.
The court rejected claims based on trespass and intrusion on privacy
because consent had been obtained, albeit fraudulently (a dubious ruling).
But the court sustained claims for fraud, for disclosure of private facts, and
for intentional infliction of emotional distress.14
2. Patty Johnson, a television reporter, accompanied Sam Ulland, a veterinar-

ian, on a visit to treat a dog at the Copeland residence. Johnson falsely
represented that she was a veterinary student. She secretly videotaped the
proceedings for subsequent broadcast. The state (Minnesota) did not
recognize a privacy action for intrusion at the time of this incident. But an
action for trespass was upheld; the Copelands had not consented to the
secret videotaping.15
3. Dolly Jean Dickerson was active in the Church of Scientology; her adult
children strongly disapproved of this involvement. They arranged with a
television talk show (the Sally Jessy Raphael Show) to secretly videotape and
record a conversation with their mother. The discussion took place on a
park bench at the suggestion of the show’s producer. Dickerson talked to
her children about her income, the stability of her marriage, and her
religious beliefs; all of her comments were picked up by a hidden micro-
phone and broadcast on the Sally Jessy Raphael Show. A Michigan court
ruled that Dickerson had no claim as regards the surreptitious videotaping
because the conversation had taken place in a park exposed to public view.
But the secret recording was actionable under Michigan’s electronic

eavesdropping statute.16
4. Geraldo Rivera, a reporter for ABC, was investigating charges of corruption

against James Barbuto, an Akron judge. Sandra Boddie agreed to be
interviewed in her home in connection with the investigation, but she
refused to appear on camera. Unknown to her, the interview was video-
taped; segments were later broadcast. After several appeals, Boddie’s claim
under the federal wiretapping statute was rejected because one of the
parties to the conversation (Rivera) had known and approved of the
videotaping. (Boddie’s claim for invasion of privacy had been submitted to
a jury; it had found against her.)17
The outcome in cases like Dickerson and Boddie will vary from state to
state. Some states (like Michigan) require the consent of all parties lawfully to
record an ostensibly private conversation. But most states follow the federal
wiretapping statute (at issue in Boddie); absent a purpose to commit a crime or
a tort, they permit one of the parties to a conversation to record it without the
other’s knowledge or consent.
D E C E P T I O N S P R A C T I C E D O N T H I R D PA R T I E S are normally not actionable. For

example, in Rifkin v. Esquire Publishing,18 a prisoner sued for invasion of pri-
vacy. He alleged that reporters had obtained information about him by telling
his friends and his ex-wife that he was cooperating in the preparation of an
article and that he had asked that others also cooperate with the reporters. In
rejecting Rifkin’s claim, the court ruled that the publisher’s “attempts to gather
information about plaintiff from third parties or to elicit the assistance of third
parties in contacting plaintiff, cannot constitute . . . an intrusion on plaintiff ’s
solitude or seclusion.”19 There was no suggestion that the publisher had ac-
quired any intimate details about plaintiff ’s private life.
Of greater significance, when investigations do not intrude on domestic or
personal affairs, journalists have been given wide latitude, at least until recently.
1. Krantz and Van Howe, reporters for the Louisville Times, were investigating
drug trafficking in Louisville. Kristie Frazier told them John McCall, an
attorney, had offered to “fix” her pending narcotics case for $10,000. At
the behest of the reporters, Frazier wore a wire at her next meeting with
McCall and sought to engage him in conversation about fixing her case.
The recorded discussion revealed a possible breach of professional ethics by
McCall but not an attempt to fix a case. A Kentucky court ruled that the
taped conversation was not an intrusion on McCall’s privacy. McCall had
talked to Frazier at his risk, knowing Frazier was free to disclose the
conversation to others. Nothing personal or private about McCall had been

disclosed.20
2. ABC conducted an undercover investigation of Medical Laboratory

Consultants (MLC), a firm engaged in examining and reporting on slides
from Pap tests used to detect cancers in women. Reporters, posing as
persons seeking to set up their own laboratory, interviewed John Devaraj,
co-owner of MLC; Devaraj commented on the fatigue of his laboratory
workers and the volume of Pap slides they reviewed every day. The
interview was surreptitiously videotaped. ABC also submitted Pap slides to
MLC; the laboratory made numerous errors. Devaraj was unsuccessful in
his privacy action because the interview revealed no private facts, was not
highly offensive, and pertained to a matter of public concern.21
3. Maria Dugandzic, a television reporter, obtained employment at Potash

Brothers, a fish market in Chicago. She secretly videotaped a conversation
with Marylyn Russell, the market’s manager, in which Russell explained the
disingenuous replies that should be made when customers asked whether
the fish was fresh. Russell’s claims for intrusion on privacy and for unlawful
wiretapping were rejected. Russell had engaged in conversation with
Dugandzic willingly; no offensive prying had occurred.22
T H E P E R M I S S I B L E S C O P E O F I N V E S T I G AT I V E J O U R N A L I S M recently came under

intense scrutiny in connection with an ABC program on the practices of the
Food Lion supermarket chain.23
Lynne Dale, an ABC reporter, obtained a position in the meat department
of a North Carolina Food Lion store. Her application made false representa-
tions, and she relied on false references. While employed at Food Lion, Dale
secretly videotaped scenes in the meat department. Susan Barnett, another ABC
reporter, obtained employment in the delicatessen department of a South Caro-
lina Food Lion store. She employed similar deceptions to obtain employment
and engaged in similar secret videotaping on the job. Both employees quit after
they had completed their undercover assignments. Barnett worked for two weeks,
Dale for one.
The clandestine tapes reflected adversely on Food Lion’s food handling and
sanitary practices; they were broadcast as part of a program critical of Food
Lion. Without challenging the accuracy of the films, Food Lion sued ABC on a
number of theories. A U.S. district court disallowed claims based on federal
racketeering and wiretapping laws but submitted several state law claims to a
jury. The jury found in favor of Food Lion on trespass, fraud, and employee
breach of loyalty. In addition, the district court, on the basis of these findings,
ruled that ABC had violated North Carolina’s Unfair and Deceptive Trade Prac-
tices Act.24
The jury awarded $1 in nominal damages for trespass, $1 in nominal dam-
ages for employee breach of loyalty, and $1,400 in compensatory damages for
fraud. The latter were designed to compensate Food Lion for the costs of hiring
and training Dale and Barnett and for repeating the same efforts with their
replacements. The jury also awarded over $5 million in punitive damages on
the fraud count, reduced by the district court to $315,000. No damages were
awarded for violation of the Unfair and Deceptive Trade Practices Act.25
The district court excluded all damages to Food Lion’s reputation stem-
ming from the derogatory ABC broadcast. Absent a challenge to its truth,
recovery for the reputational harms resulting from the broadcast would be
incompatible with the Supreme Court’s defamation cases and with the rejection
of liability for the hurtful parody in Hustler Magazine v. Falwell.26 If a challenge
is to be mounted against the truth of a statement made about a public figure,
plaintiff must comply with the rigorous actual malice requirement of New York
Times Co. v. Sullivan.
The Court of Appeals for the Fourth Circuit affirmed the district court on
the trespass and employee loyalty counts (although disagreeing with some of the
lower court’s reasoning).27 It also affirmed the district court’s ruling disallowing
damages for reputational harm, adopting essentially the same reasoning as the
lower court.28 But the court of appeals set aside the district court’s ruling on
fraud (and the appended award of punitive damages).29 Food Lion recovered a
judgment for $2 in nominal damages for trespass and for breach of the employ-
ees’ duty of loyalty.
On the critical fraud count, the court of appeals held that under governing
North Carolina law, a plaintiff in a fraud case must establish that the defendant
(1) made a false representation of material fact, (2) knew it was false (or made it
with reckless disregard of its truth or falsity), and (3) intended the plaintiff to
rely on it. In addition, (4) the plaintiff must be injured by reasonably relying on
the false representation.30 The court conceded that Food Lion had established
the first three elements: Dale and Barnett had knowingly made false representa-
tions intending Food Lion to rely on them. But the court concluded that since
Dale and Barnett were employees at will who could quit at any time, Food Lion had
not been injured when it relied on their misrepresentations in offering them em-
ployment. Had Food Lion hired anyone else in these high-turnover positions, they,
too, might have left after a week or two.31 That Food Lion was deprived of the
opportunity to make an informed and untainted judgment on who to hire and
who not to hire was considered “too speculative to form a basis for damages.”32
To the court of appeals, the law of fraud is not concerned with enabling
persons to make autonomous decisions based on untainted information. Its
approach would enable swindlers to prey on the weak and gullible and, when
caught, to defend on the ground that their victims would have lost their money
in any event to some folly or other. To be sure, Food Lion might have made
poor judgments in hiring persons other than Barnett and Dale, but it might
have made good judgments as well. That was an opportunity of which Food
Lion should not have been deprived, either by ABC or by the Fourth Circuit.
The court’s obduracy was compounded by its pious observation “We are con-
vinced that the media can do its important job effectively without resort to the
commission of run-of-the-mill torts.”33
The decision of the court of appeals also was at variance with governing
North Carolina law. In a North Carolina case, a borrower sought damages
because the lender’s identity had been misrepresented. The borrower’s claim
was held to be valid: “Persons borrowing money may very well consider the
identity of their lender. In the instant case, [the borrower] has presented evi-
dence indicating that it would not have dealt with the [lenders] for various
reasons.”34 Similarly, Food Lion would not have hired Barnett and Dale had it
known their true identities and mission.
The court’s refusal to face the fraud count squarely does not do it credit. It
was an act of cowardice, seeking to evade the hard issue presented in Food
Lion. Should compensatory and punitive damages be awarded against a media
defendant when it deliberately flouts the law—by trespass, fraud, and breach of
employee loyalty—in pursuit of a story? Or does the First Amendment preclude or
limit such a recovery? All of the precedents—and the observation of the court
itself—support the view that the press must obey laws of general applicability.
O T H E R R E C E N T C A S E S H AV E H E L D T H E M E D I A A C C O U N TA B L E under similar
circumstances. In one, a reporter for a television station obtained a position as
a volunteer at a facility for the care and treatment of the mentally handicapped.
She had represented that she was unemployed, concealing her position with the
station. While at the facility, she used a hidden camera to obtain video footage
for her media-employer. A Minnesota appellate court found triable issues as to
trespass and fraud.35
In another case of this character, coworkers were held to have triable claims
for invasion of privacy. Stacy Lescht, a reporter for ABC, obtained employment
in a firm providing psychic advice over the telephone. While so employed, she
secretly videotaped her conversations with several coworkers, including Mark
Sanders. Sanders sued for intrusion on privacy, and the California Supreme
Court ruled that in an office or other workplace to which the general public
does not have access, “employees may enjoy a limited, but legitimate, expecta-
tion that their conversations and other interactions will not be secretly video-
taped by undercover television reporters, even though those conversations may
not have been completely private from the participants’ coworkers.” The court
reserved for future consideration the question of whether the intrusive video-
taping was sufficiently offensive to be actionable—considering, among other
things, ABC’s news-gathering motive.36
I N A N I M P O R TA N T C A S E , CNN T E L E V I S I O N R E P O R T E R S surreptitiously ac-

companied federal agents on a search of a ranch. Paul and Erma Berger resided
on a 75,000-acre ranch in Montana; Paul was seventy-one, Erma was eighty-
one. Based on reports that Mr. Berger had poisoned or shot eagles, federal
agents in March 1993 obtained a warrant to search the Berger ranch and appur-
tenant structures, excluding the residence, for evidence indicating the taking of
wildlife. In accordance with a prior agreement, not disclosed to the magistrate
or mentioned in the search warrant, a CNN film crew recorded more than
eight hours of tape at the Berger ranch. One of the federal agents, Joel Scrafford,
wore a concealed CNN microphone that transmitted for recording in a nearby
van the agent’s conversations with Mr. and Mrs. Berger—including conversa-
tions in the Berger residence (which had been excluded from the scope of the
search warrant). On suit by the Bergers, a U.S. court of appeals held that the
government agents were liable in damages; they had violated the Bergers’ consti-
tutional rights by inviting the media to accompany them.37 The court followed
Ayeni v. CBS 38 and related cases discussed in Chapter 31. (The judgment against
the government agents was later reversed on grounds not germane to the present
discussion.)
CNN was also held liable for the constitutional violation because it had
acted in concert with the government agents. The Bergers “had an expectation
of privacy in their conversations with Agent Scrafford, and [the agent and CNN]
infringed that privacy when they recorded the Bergers’ conversations inside the
house.”39 In addition, the Bergers had alleged plausible claims of trespass and
intentional infliction of emotional distress against CNN; these were remanded
for consideration on a fully developed record: “[T]he Bergers have alleged a
claim of interference with both their privacy and their property interests.”40 But
even though the Bergers had alleged “triable claims for damages arising out of
the manner in which [CNN] obtained the material, such allegations [were] not
sufficient to support the imposition of an injunction” against CNN’s broadcast

of the material so acquired.41
To be sure, the Bergers had alleged an intrusion into their home, and the
court relied on Dietemann v. Time, Inc.42 in upholding their privacy claim. But
the Bergers were not restricted to that isolated intrusion. They were entitled to
a trial on the unauthorized and deceptive intrusion of the CNN film crew onto
their 75,000-acre ranch—their business premises.
I N S TA N C E S O F D E C E P T I O N are likely to be carefully scrutinized by the courts if

journalists seek to insinuate themselves into the home or into personal or fam-
ily relationships. The media may be confronted with viable claims of trespass,
fraud, intrusion on private affairs, disclosure of private facts, and intentional
infliction of emotional distress. (A constitutional claim may also be asserted if
the media act in concert with government agents.) Secret recordings may be
actionable if the state statute so provides, but the federal wiretapping act is
typically unavailable.
In business and professional dealings, the availability of legal redress is less
clear. Under existing rulings a reporter may pose as a customer or a client or a
prospective investor without incurring liability in most instances (liability for
any secret recording will turn on the wiretapping statute in issue). But intrusion
under the aegis of law enforcement, as in CNN, or intrusion in the guise of an
employee, as in Food Lion, is more risky. In the latter case there is an ongoing
contractual relation between the parties, one that gives rise to a duty of loyalty
by the employee to the employer and one that may afford the employee access
to areas from which the public is excluded. Food Lion may be a harbinger of
increased liability in cases of deception by reporters posing as employees.
But Food Lion is also significant for the limit it imposed on permissible
damages. Contrary to the court of appeals’ decision, the media should absorb
any costs inflicted upon the target employer by the bogus employment relation-
ship: the transactional costs of hiring, training, and replacing the fraudulent
employee; and compensation for property damaged or business lost as a result
of that employee’s incompetence or inattention. But punitive damages are much
more troublesome, in part because of their unpredictable magnitude. The ques-
tion is whether, as a matter of social policy, we approve of the press using bogus
employees to infiltrate areas of a business concern not otherwise open to jour-
nalistic scrutiny. If the answer is yes, compensatory damages of the type de-
scribed should be the limit of the concern’s recovery. If as a society we do not
approve of such infiltration, compensatory damages are obviously inadequate
to deter consciously wrongful behavior by the press. Punitive damages should

then be allowed, subject to judicial scrutiny. The issue is a close one on which
further developments seem likely. The Food Lion court evaded the key issue.
In no event should recovery for reputational loss be allowed in the absence
of falsity and actual malice, as required by New York Times Co. v. Sullivan.
T H I R T Y - F O U R
AFTER THE PENTAGON PAPERS
I N E A R L Y 1 9 7 1 D A N I E L E L L S B E R G , a government consultant, made unau-

thorized photocopies of a 7,000-page classified document entitled “History of
U.S. Decision-Making Process on Viet Nam Policy.” He made the copies
available to the New York Times and later to the Washington Post. In June, after
several months of study, the New York Times decided to publish stories based
on the document (including excerpts). The Washington Post followed suit. The
United States sought to enjoin publication, and after expedited review, the
Supreme Court rendered a decision in the Pentagon Papers case on June 30,
1971.1
The government argued that publication of the document would reveal
classified information detrimental to national security. Without discussing
whether national security would be jeopardized or whether the newspapers or
their sources had violated the law, the Supreme Court ruled that publication
could not be enjoined. The vote was six to three. The Court’s brief per curiam
order stated simply: “Any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its constitutional validity. . . . The
Government thus carries a heavy burden of showing justification for the impo-
sition of such a restraint. [Three of the four lower courts passing on this case]
held that the Government had not met that burden. We agree.”2
During the litigation the government emphasized that Daniel Ellsberg had
wrongfully made the photocopies provided to the Times and the Post and that
the newspapers were not authorized even to possess copies of papers classified
as top secret under the federal government’s classification system. The newspa-
A F T E R T H E P E N TA G O N PA P E R S 257
pers insisted that they had done nothing wrong in obtaining copies of the study,
but they made no representations as to whether Ellsberg had acted illegally in
making the copies available to them.3 In the Supreme Court each justice ex-
pressed a position on the case. Three justices (Black, Brennan, and Douglas)
were of the view that the newspapers had acted lawfully in making the classified
information public.4 One justice (Harlan) expressed no opinion on the point.5
The five remaining justices (Berger, Blackmun, Marshall, Stewart, and White)
concurred in the view that the newspapers might have acted unlawfully in the
circumstances and might be subject to postpublication penalties for disclosing
classified information, but they disagreed on whether the papers could be sub-
jected to a prior restraint.6 No one commented on Daniel Ellsberg’s conduct.
Of particular importance to several justices was the fact that Congress had not
authorized the government to seek or obtain injunctive relief under the circum-
stances of this case.
Despite some rumblings from the Department of Justice, no legal actions
were instituted against the New York Times or the Washington Post following
publication of the Pentagon Papers. Daniel Ellsberg was indicted for espionage
and for theft of government property, but the charges were never brought to
trial and were ultimately dismissed.7
The Supreme Court’s antipathy to prior restraints is grounded in prece-
dents that have erected almost insurmountable obstacles.8 More recent deci-
sions have reinforced the view that even if information is illegally obtained, an
injunction against disclosure will not be entered absent a showing of immediate
and irreversible harm of a possibly unattainable magnitude.9 As a practical
matter, a court order against the dissemination of illegally obtained information
is almost certainly unavailable.10
The soundness of this special proscription against prior restraints is not of
immediate concern. This chapter pursues questions left open in the Pentagon
Papers case. Assume that the Court was correct in denying a prepublication
request for injunctive relief. Could the newspapers be subject to civil or crimi-
nal sanctions following publication if they had acted unlawfully in receiving,
perusing, and publishing the classified material? Assume that Daniel Ellsberg
had acted unlawfully in supplying the photocopies to the newspapers. Could the
newspapers be held accountable for receiving and using the information ob-
tained by Ellsberg if they had known that Ellsberg had violated the law?
We begin with instances in which authors, journalists, or the media them-
selves act in violation of the law.
W H E N F R A N K S N E P P J O I N E D the Central Intelligence Agency (CIA) in 1968,

he executed an agreement promising that he would not publish any information
relating to CIA activities without agency approval. He also promised not to
disclose any classified information without proper authorization. Snepp later
published a book about certain CIA activities in South Vietnam. The govern-
ment did not contend that the book contained any classified information, but
Snepp had failed to submit the book to the CIA for its approval prior to publi-
cation. On suit by the government, a U.S. district court found that Snepp had
breached both his position of trust with the CIA and the 1968 agreement he
had made with the agency. It enjoined Snepp from breaching the agreement in
the future and imposed a constructive trust on Snepp’s profits from the pub-
lished volume, requiring that all such proceeds be turned over to the govern-
ment.11 (The book’s publisher had not been sued.)
In a 1980 opinion the Supreme Court affirmed the rulings of the district
court. It relied not only on Snepp’s voluntary agreement but also on prior cases
that
make clear that—even in the absence of an express agreement—the CIA could
have acted to protect substantial government interests by imposing reasonable
restrictions on employee activities that in other contexts might be protected by the
First Amendment. . . . The Government has a compelling interest in protecting
both the secrecy of information important to our national security and the
appearance of confidentiality so essential to the effective operation of our foreign
intelligence service. . . . The agreement that Snepp signed is a reasonable means for
protecting this vital interest.12
The Court concluded that in view of Snepp’s position of special trust, he

should have given the CIA an opportunity to determine whether the material he
proposed to publish would compromise classified information or sources: “When
a former agent relies on his own judgment about what information is detrimen-
tal, he may reveal information that the CIA—with its broader understanding of
sources—would have identified as harmful.”13 As to the claim of censorship,
the Court responded: “If Snepp . . . had submitted his manuscript for review
and the Agency had found it to contain sensitive material, presumably . . . an
effort would have been made to eliminate harmful disclosures. Absent agree-
ment in this respect, the Agency would have borne the burden of seeking an
injunction against publication.”14
Although Snepp’s agreement made it easier to define the scope of his obli-
gation of nondisclosure, the Court made clear that, agreement or no, the gov-
ernment had the authority to control information originating with its intelli-
gence operatives on a showing of good cause.
T H E P O W E R O F T H E G O V E R N M E N T to protect information under its control,

as well as the proprietary information of others, is not subject to serious dis-
pute. In Branzburg v. Hayes,15 a reporter relied on the First Amendment in
resisting an order to testify before a grand jury about criminal activity he had
witnessed. In a 1972 opinion the U.S. Supreme Court rejected the argument
that immunity for the reporter was essential to facilitate news gathering:
It would be frivolous to assert . . . that the First Amendment, in the interest of
securing news or otherwise, confers a license on either the reporter or his news
sources to violate valid criminal laws. Although stealing documents or private
wiretapping could provide newsworthy information, neither reporter nor source is
immune from conviction for such conduct, whatever the impact on the flow of
news. Neither is immune, on First Amendment grounds, from testifying against
the other, before the grand jury or at a criminal trial.16
The point at issue is illustrated by Pell v. Procunier,17 a 1974 Supreme

Court decision sustaining the constitutionality of a California prison regulation
barring media interviews with specific prisoners. The regulation had its origins
in disciplinary problems, some leading to violence; disturbances had been linked
to the fact that some inmates had achieved prominence premised on press
coverage of interviews with them. The Court observed that members of the
press enjoyed access to California prisons superior to that available to other
members of the public and that news gathering was entitled to some measure of
First Amendment protection to ensure the vitality of a free press.
[But] the First Amendment does not guarantee the press a constitutional right of
special access to information not available to the public generally. . . . Despite the
fact that newsgathering may be hampered, the press is regularly excluded from
grand jury proceedings, our own conferences, the meetings of other official bodies
gathering in executive session, and the meetings of private organizations. News-
men have no constitutional right of access to the scenes of crime or disaster when
the general public is excluded. . . . Similarly, newsmen have no constitutional right
of access to prisons or their inmates beyond that afforded the general public.18
This statement, although reflecting the dominant theme, is probably over-

broad. In a few exceptional cases the press has gained access more extensive
than that of the public.19 More often, the press gains access by contending that
the public cannot be deprived of access. The press has gained access to criminal
trials by following this strategy.20 By contrast, when the press is a party to litiga-
tion, it can be barred—like any other litigant—from extrajudicial dissemina-
tion of information gained through the discovery process on a showing of good
cause.21 In such circumstances courts are empowered “to restrict the expression
of participants, including counsel, witnesses, and jurors.”22
As indicated in Branzburg and Pell, government restrictions may protect
private as well as public domains. Members of the press may not engage in
trespass or theft or wiretapping simply because their objective is to gather
newsworthy information. As noted in Chapter 31, the federal wiretapping stat-
ute and most state wiretapping statutes permit one party to a telephone conver-
sation to record that conversation without the knowledge or consent of the
other. But some states require the consent of all parties. The broader statutes
have been upheld as constitutional over objections raised by the media that they
need the ability to record conversations to obtain accurate information in the
course of news gathering.23
Not all limits on news gathering are valid. Some government efforts to limit
press inquiries have been successfully challenged. But for present purposes the
issue is: Assuming a legitimate government limitation on the acquisition or
dissemination of information, what are the consequences if the press gains
information by transgressing those limits? What if it obtains information from
others who have transgressed? Is the press free to publish the information thus
derived?
W H E N T R A N S G R E S S O R S A R E B E F O R E T H E C O U R T , Snepp provides the an-

swer: transgressors are subject to sanctions. Additional examples:
1. Robert Riggs gained unauthorized access to Bell South’s computer system in
Atlanta and downloaded a copy of a company file (known as E911). Craig
Niedorf obtained the file from Riggs, and, after editing it, he published it in an
issue of PHRACK, a hacker publication disseminated to other computer hackers.
Riggs and Niedorf were charged with a scheme to defraud and with multiple
counts of wire fraud and interstate transportation of stolen property. Niedorf ’s
motion to dismiss the indictment was rejected.24 Not only was the original theft
punishable; the criminal statutes in issue reached subsequent transfer, editing,
and publication of the E911 file. Niedorf ’s First Amendment claim was
rejected. The indictment charged that “even though Niedorf did not actually
steal the E911 file, he was completely aware that it was stolen when he received
it from Riggs. As such, Niedorf clearly stands on different footing” than
publishers who obtain information by lawful means.25
2. While employed as a historian with the CIA, Jack Pfeiffer authored a draft
history of the agency’s internal investigation of the Bay of Pigs operation. When
he left the agency, he took a copy of his draft with him. In subsequent litigation
between Pfeiffer and the government about publication of the history, the
government sought the return of Pfeiffer’s draft.26 The court agreed with the
government that the document had been unlawfully appropriated and ordered
it returned: “Pfeiffer stole the copy of the [document] and thus may not use the
First Amendment as a defense.”27
I N G E N E R A L , the media and their sources are not immune from civil and crimi-
nal sanctions if they violate the law. But what of cases in which the source
violates the law and the media, not themselves participants in the wrongdoing,
accept and use the information unlawfully acquired or disclosed by the source?
Several themes have emerged from the litigation on this issue. First, if the
source of the information is the government itself, the press is protected by the
First Amendment in publishing the information even though the source vio-
lated the law in disclosing the information in the first instance. For example, in
Landmark Communications, Inc. v. Virginia,28 the state sought to punish a news-
paper for publishing the identity of a judge under investigation—required by
law to be kept confidential but disclosed to the press nonetheless. The statute
was held to violate the First Amendment.
In Smith v. Daily Mail Publishing Co.,29 a state statute prohibited the iden-
tification of juvenile offenders. Two newspapers ascertained the name of a
juvenile offender by routine monitoring of the police band radio frequency,
proceeding to the scene of the crime, and asking various witnesses, the police,
and others who were present. The Supreme Court held the state statute uncon-
stitutional on the facts presented. Here the newspapers had “relied upon rou-
tine newspaper reporting techniques to ascertain the identity of the alleged
assailant.”30
In Cox Broadcasting Corp. v. Cohn31 and The Florida Star v. B.J.F.,32 the
Supreme Court struck down statutes proscribing media identification of rape
victims. (The cases are discussed in Chapter 29.) In Cox Broadcasting a reporter
ascertained the victim’s identity by examining an indictment made available in
open court. In Florida Star the reporter obtained the information by examining
a report in the Police Department pressroom. Although the reporter knew the
information was supposed to be kept in confidence (the Police Department had
erred in identifying the victim in its pressroom release), the Supreme Court
concluded that the reporter’s acquisition of the information had been lawful:
“The fact that state officials are not required to disclose such reports does not
make it unlawful for a newspaper to receive them when furnished by the gov-
ernment.”33 (As indicated in Chapter 29, Cox and Florida Star are troublesome
decisions—but not on the point here in issue.)
Second, if the source of the information is not the government, the applica-
tion of the First Amendment is less clear. The problem is particularly acute if
the source obtained the information illegally and the press publishes the infor-
mation with knowledge, or with reason to know, of its illegal origins. Until very
recently the Supreme Court had not addressed this issue. Lower court cases
went off in different directions.
In Pearson v. Dodd,34 decided in 1969, Drew Pearson and Jack Anderson,
two Washington columnists, wrote a series of articles about the relationship
between Senator Dodd of Connecticut and lobbyists for foreign interests. The
articles relied in part on documents from Senator Dodd’s files taken from the
files by two of Senator Dodd’s former employees. Copies were made, the origi-
nal documents were replaced, and the copies were turned over to Pearson and
Anderson—who were aware of the manner in which the documents had been
obtained. Senator Dodd sued for invasion of privacy. A U.S. court of appeals
rejected the claim.
As to intrusion, the court assumed without deciding that Dodd’s former
employees had committed an improper intrusion when they removed confiden-
tial files with the intent to show them to unauthorized outsiders. Even so, the
court declined to hold Pearson and Anderson liable for receiving information
from an intruder, despite their knowledge that the information had been ob-
tained by improper means. But Pearson and Anderson “did more than receive
and peruse copies of the documents taken from [Dodd’s] files; they published
excerpts from them in the national press.”35 Even so, injuries from intrusion
and from publication should be kept clearly separate.
[W]here . . . information concerning plaintiff has been published, the question of
whether the information is genuinely private or is of public interest should not
turn on the manner in which it has been obtained. . . . [Here] the matter pub-
lished was of obvious public interest. . . . Since [the columnists’] role in obtaining
the information did not make them liable . . . for intrusion, their subsequent
publication, itself no invasion of privacy, cannot reach back to render that role
tortious.36
J O H N T. S U L L I VA N WA S T H E M AY O R O F O S W E G O , New York. Robert Natoli,

a local businessman, and William Ruggio, chief of police, were political en-
emies of Mayor Sullivan. Over a three-year period (1989–1991), James Earhart,
an ally of Sullivan, tapped telephone conversations between Natoli and Ruggio
and disclosed their contents to Sullivan to assist him in devising political strat-
egy. Subsequently, Earhart and others made tapes of the wiretaps available to
the Oswegonian, a college paper, and the Palladium Times, a local daily. The two
newspapers, knowing the tapes had been obtained by illegal wiretapping, pub-
lished stories disclosing their contents to the public.
Natoli and Ruggio sued Sullivan, Earhart, and the two newspapers for vio-
lation of the federal wiretap statute. The media defendants sought dismissal on
First Amendment grounds. The New York courts rejected their motion. The
trial court found a clear violation of the federal statute, which subjects to suit
anyone who “intentionally discloses . . . the contents of any . . . communica-
tion, knowing or having reason to know that the information was obtained
through the interception of a . . . communication in violation of [the federal
wiretap statute].”37 The court distinguished the Supreme Court decisions previ-
ously discussed—Landmark Communications, Smith v. Daily Mail, Cox Broad-
casting, and Florida Star—on the ground that the recordings in this case
were allegedly unlawfully made by private parties in the first instance. The
material published was not merely leaked in violation of a statute requiring it to be
kept secret—it was illegally created in the first instance—the fruit of an illegal
wiretap. . . . The information . . . was in private hands, there was no governmental
custody. There is no overriding interest in open government to be protected, nor
reliance upon the government’s having placed the information in the public
domain.38
O N D E C E M B E R 21, 1996 , several Republican members of Congress, in-

cluding Speaker Newt Gingrich, were participating in a telephone conference
call concerning possible responses to an ethics probe of the speaker’s finances.
Representative John Boehner was participating over a cellular telephone. Alice
and John Martin intercepted and taped Boehner’s cellular transmission in viola-
tion of the federal wiretapping statute. The Martins turned their tape over to
Representative James McDermott, who in turn gave copies of the tape to the
media. The New York Times ran the story on January 10, 1997. Boehner sued
McDermott for disclosing the contents of the illegally taped conversation in
violation of the federal wiretap statute.
The Martins were prosecuted and fined for their violation of the statute.
McDermott knew the tape had been made illegally, but he argued that the
federal statute did not prohibit his receipt of the tape notwithstanding his knowl-
edge of its illicit origin. Thus he had not broken any law in taking possession of
the tape—that is, he had obtained the information lawfully. Accordingly, he was
privileged to disclose the information under the Supreme Court’s decisions in
Florida Star and related cases. In a 1999 decision a U.S. court of appeals disagreed,
finding a violation of the statute: McDermott had “intentionally disclose[d] . . .

the contents of [a] communication, knowing . . . that the information was
obtained through the interception of a . . . communication.”39 McDermott’s
First Amendment challenge was rejected:
[The statute] prohibits the disclosure of all illegally intercepted communications,
without regard to the substance of the communication or the identity of the
person who does the disclosing. It reveals no governmental interest in distinguish-
ing between types of speech based on content. It neither favors nor disfavors any
particular viewpoint.
[The statute] promotes the freedom of speech. Eavesdroppers destroy the
privacy of conversations. The greater the threat of intrusion, the greater the
inhibition on candid exchanges. Interception itself is damaging enough. But the
damage to free speech is all the more severe when illegally intercepted communica-
tions may be distributed with impunity.40
The court also observed that receiving stolen property is punished “to re-
move the incentive to steal, to dry up the market for stolen goods.” Similarly,
unless disclosure of illegally procured information is prohibited, an incentive
for illegal interceptions exists. The party doing the illegal interception may choose
not to make the disclosure himself, if only to avoid criminal sanctions, passing
along the information for disclosure by a person not a party to the original
interception.41
In distinguishing Florida Star and related cases, relied on by McDermott
and by a dissenting opinion, the court refused to accept McDermott’s claim of
innocence—that he had “lawfully obtained” the tape recording. In receiving the
tape, McDermott had taken part in an illegal transaction—the Martins’ disclo-
sure to McDermott—and if he did not thereby break the law, “he was at least
skirting the edge.”42 A concurring judge made a similar point: “One who ob-
tains information in an illegal transaction, with full knowledge that the transac-
tion is illegal, has not ‘lawfully obtained’ the information in any meaningful
sense.” 43
T W O Y E A R S L AT E R T H E U . S . S U P R E M E C O U R T entered the fray. Gloria

Bartnicki and Anthony Kane were negotiators representing teachers of the Wyo-
ming Valley West School District in Pennsylvania. Jack Yokum was president of
a local taxpayers’ organization, formed to oppose the demands of the teachers’
union. In May 1993, using her cellular phone, Bartnicki discussed with Kane
an effort by the local school board to limit the teachers’ raise. Among other
things, Kane said, “If they’re not gonna move for three percent, we’re gonna
have to go to their, their homes . . . to blow off their front porches, we’ll have to
do some work on some of those guys.”44 (As evidenced elsewhere in their con-
versation, Kane and Bartnicki had been upset because the school authorities
were discussing the board’s negotiating posture with the press rather than with
the union.)
An unknown person recorded the Bartnicki-Kane conversation and left a
tape in Jack Yokum’s mailbox. Yokum made the tape available to others, includ-
ing a local radio station (WILK), which broadcast the tape. Bartnicki and Kane
sued Yokum and WILK for damages for violation of federal and state wiretap
statutes. In identical terms, the laws prohibited disclosures of the contents of
intercepted messages by anyone “knowing or having reason to know that the
information was obtained” through illicit wiretapping. The district court con-
cluded that genuine disputes of fact remained regarding whether the Bartnicki-
Kane conversation had been illegally intercepted and, if so, whether Yokum and
WILK had known or had had reason to know that the conversation had been
illegally intercepted. But the court certified for appellate review the question of
whether it would violate the First Amendment to impose liability on any of the
defendants if the tape had been illegally intercepted and recorded by unknown
persons who had not been agents of the defendants.45
Ultimately, the issue reached the Supreme Court. The Court assumed that
the initial interception had been intentional and therefore unlawful and that, at
a minimum, Yokum and WILK “had reason to know” that the interception had
been unlawful. Accordingly, the disclosures by Yokum to WILK and others, as
well as subsequent disclosures by WILK and other media to the public, violated
the federal and state wiretap statutes.46 But the Court ruled that the statutes, as
thus applied, violated the First Amendment. It emphasized that neither Yokum
nor the media had played any part in the illegal interception, that they had
obtained the tapes lawfully even though the information itself had been ob-
tained unlawfully by one or more unidentified persons, and that the subject
matter of the conversation was a matter of public concern.47 The Court drew no
distinction between Yokum and the media entities.48
The government relied on two interests in seeking to sustain the constitu-
tionality of the statute: “first, the interest in removing an incentive for parties to
intercept private conversations, and second, the interest in minimizing the harm
to persons whose conversations have been illegally intercepted.”49 On the first
point, the Court ruled that no empirical data supported the assumption that the
prohibition against disclosures reduces the number of illegal interceptions. In
most cases, unlike the present case, the identity of the intercepting party is
known, and the government can proceed directly against the party engaged in
the unlawful interception.50 The Court’s reading of the empirical data, or lack
thereof, was challenged by the dissenters. They pointed out that there is no way
of knowing how effective a particular prohibition may be in deterring crime in
the absence of data virtually unobtainable in the real world.51 In instances of the
type at issue, the intercepted messages are worthless to the interceptor unless he
can find an outlet for his illicit information. The ability to convey that informa-
tion to another party, free to publish with impunity, turns a worthless intercep-
tion into one that provides the interceptor with all the psychic gain to be de-
rived from his illegal activity without subjecting him to the threat of criminal or
civil sanctions.
On the second point, the Court ruled that disseminating information on
matters of public concern was more important than protecting the privacy in-
terests of those participating in the intercepted conversation. This despite the
Court’s concession that the First Amendment protects not only the right to
speak but the right not to speak—a right being exercised by Bartnicki and Kane
when they chose to have a private conversation rather than make a public
proclamation.52 But what was the issue of public concern in this case? The
negotiations over teacher compensation in the Wyoming Valley West School
District, as well as the outcome of those negotiations, were clearly matters of
public concern. But an abundance of information on those issues was already in
the public domain. What did the tape add? It disclosed that two persons on the
union side had been upset and that, in a private conversation not part of any
public debate, they had used intemperate language in venting their frustrations.
Two concurring justices, seeking to bolster the majority’s position on this
aspect of the case, purported to find a threat of physical harm in the language
used.53 But no one else had perceived such a threat. The strike had been peace-
ful throughout. No public threats had ever been uttered. The police were never
called in. And the broadcast of the tape had been made after the disputing
parties had reached a settlement. The position of the concurring justices is at
best a vain effort at damage control. There had been no violence or any credible
threat of violence.
Following Bartnicki, the opinion in Boehner v. McDermott was vacated. The
case was remanded to the court of appeals, which in turn remanded the case to
the trial court, to determine whether the imposition of liability in Boehner
would be consistent with Bartnicki.
The Bartnicki opinion reaches an unfortunate outcome in allowing the dis-
semination of information illegally obtained. Even if the information had held
greater social significance than the disclosures there at issue, the decision is
clearly wrong. Despite the importance of affording the public access to infor-
mation of significance, legal sanctions are routinely imposed if, to obtain the
information, journalists must burglarize homes or offices, employ illicit wire-
taps, or intercept mail or other private correspondence. The prevention of
burglary, wiretapping, and mail tampering takes precedence over access to in-
formation. The equation is not altered if these felonies are committed by third
parties who make the fruits of their crimes available to the media.
Even so, in Bartnicki there lurked an issue of importance not reached by
the Court. One of the lower court opinions had expressed concern that punish-
ing the media on the basis of “reason to know” would deter speech in instances
in which the wiretap legislation had not been violated—because the media
would exercise undue caution to avoid the possibility that proffered informa-
tion had an illicit origin.54 This prospect is precisely the kind of self-censorship
that led to formulation of the actual malice standard in New York Times Co. v.
Sullivan. The appropriate response in cases like Bartnicki is to interpret “reason
to know” to require actual malice under the New York Times standard—knowledge
of illegality or reckless disregard of that fact—whenever a disclosure addresses
an issue of public concern.
Thus innocent acquisition of knowledge could not be subjected to sanc-
tions; neither could subsequent dissemination except in the most extraordinary
circumstances. The standard articulated by the Supreme Court is a demanding
one. If the press “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.”55
Thus, for example, a newspaper would normally be permitted to publish—free
from liability—truthful information supplied by an anonymous source, made
available by mistake, or voluntarily disclosed by a person not known to have
acquired the information unlawfully.
T H I S B R I N G S U S T O T H E T H I R D A N D F I N A L T H E M E . To gain the safe haven of

Bartnicki, the press must be innocent of any involvement in the illegal procure-
ment of information. Presumably, the press may not bribe or induce another
to violate the law. But participation more marginal in character may suffice to
subject the press to sanctions. In Peavy v. WFAA-TV, 56 Carver Dan Peavy was a
trustee for the Dallas Independent School District from 1986 to 1995. An
antagonistic neighbor, Charles Harman, intercepted telephone conversations
between Peavy and an insurance company representative indicating that Peavy
had been receiving “kickbacks” in return for placing school district insurance
contracts with that representative. Harman went to the police, and when they
declined to act he contacted Robert Riggs, an investigative reporter for WFAA-

TV. Riggs took the tape then in Harman’s possession and encouraged him to
make further tapes. (He instructed Harman not to turn the tape machine on
and off while recording intercepted conversations and not to edit them so the
tapes’ authenticity could not be challenged.) In addition to the initial tape,
Harman furnished Riggs with seventeen more tapes, recording 188 telephone
conversations between the Peavy family and others—conversations concerned
with a variety of business and personal matters in addition to insurance place-
ment.
WFAA broadcast a number of reports on Peavy’s alleged wrongdoing in
connection with the placement of the school district insurance contracts. It did
not broadcast the tapes themselves, but it did disclose their contents. Three
separate legal proceedings ensued. First, Harman pleaded guilty to violation of
the federal wiretap statute and was fined $5,000. Second, Peavy and his associ-
ates were indicted for bribery and other offenses related to the school district’s
insurance contracts; they were acquitted of all charges. Finally, Peavy sued Riggs
and WFAA for damages under federal wiretap legislation. The court of appeals
ruled that the case could proceed to trial, notwithstanding the defendants’ First
Amendment objections, because Riggs and WFAA had participated in the illicit
wiretapping.57 In Bartnicki the Supreme Court referred to Peavy as a case in
which “the media defendant in fact participated in the interceptions at issue.”58
(In the same footnote, the Court referred to Boehner as a case in which the
defendant had known the identity of the wiretappers and the means by which
they had obtained the tape and one in which the lower courts had found that the
defendant had acted unlawfully in accepting the tape.)
I N S U M , M E D I A D E F E N D A N T S A N D O T H E R S who participate in the illicit pro-

curement of information may be held accountable for their malfeasance. But
under Bartnicki, innocent recipients of illegally obtained evidence may dissemi-
nate that information free from fear of liability. Whether Bartnicki will stand the
test of time is unclear. The majority opinion commanded only four votes; three
justices dissented on grounds previously articulated in Natoli and Boehner. Two
concurring justices joined the majority in Bartnicki on the far-fetched premise
that the information there at issue posed a threat of violence and thus was of
unusual public significance. Interestingly, the information at issue in Peavy—
involving possible corruption of a public official—was not sufficient to raise a
First Amendment barrier to an action for redress against the television station
despite the information’s obvious public importance.
If the government cannot resort to burglary, unauthorized wiretapping, and

the like to achieve the objectives of law enforcement and if the press cannot
resort to such tactics to provide important information to the public, it is
unclear why the law should provide aid and comfort to information vigilantes of
the kind involved in Natoli, Boehner, Bartnicki, and Peavy by enabling them to
achieve their lawless objectives by using the press as an intermediary. If they
remain anonymous, as they did in Bartnicki, no sanctions are available to curb
their transgressions.
P A R T S I X
FACT, FICTION,
AND THE FUTURE
272 FACT, FICTION, AND THE FUTURE
THE ADVENTURES OF ARTEMUS JONES 273
T H I R T Y - F I V E
THE ADVENTURES OF ARTEMUS JONES
O N J U L Y 12, 1908, T H E L O N D O N Sunday Chronicle published an article

purporting to describe a motor festival in Dieppe, France. It quoted an ob-
server as saying:
“Whist! [T]here is Artemus Jones with a woman who is not his wife, who must be,
you know—the other thing!” . . .
Really, is it not surprising how certain of our fellow-countrymen behave when
they come abroad? Who would suppose, by his goings on, that he was a
churchwarden at Peckham. [Here] he is the life and soul of a gay little band that
haunts the Casino and turns night into day, besides betraying a most unholy
delight in the society of female butterflies.1
Thomas Artemus Jones, generally known as Artemus Jones, was a barrister

who in the past had contributed articles to the Sunday Chronicle. The newspa-
per, on complaint by Jones, disclaimed any intent to refer to him. Its evi-
dence—accepted as true—was that the name selected was fictitious, chosen as
unlikely to be the name of a real person; no one connected with the article had
known that any existing person bore the name or was known as Artemus Jones.
Witnesses for the plaintiff testified that they had read the article and had thought
it referred to the plaintiff (even though the plaintiff had never been a churchwarden
at Peckham). Artemus Jones received a substantial award in compensatory dam-
ages from E. Hulton & Sons, the publisher. In upholding the award, the courts
on appeal emphasized that liability was strict and that the innocence of the
newspaper’s intentions would not exonerate it. One reviewing judge found “some
ingredient of recklessness” stemming from the paper’s prior association with
Jones;2 but for the most part the emphasis was on the injury done to Jones, even
assuming the newspaper’s innocence.
T I M E M A G A Z I N E B E G A N A N A R T I C L E entitled “Foreign News, France” with

this statement in quotes: “Yesterday Curtis B. Dall, son-in-law of President
Roosevelt, shot himself in the White House in the presence of his estranged
wife and Mrs. Roosevelt. He died later in the day.”3
The point of the quotation, which was a false statement, was to mock a
cryptic report of the suicide of the son-in-law of the French prime minister. A
jury found that the quotation was “imaginary and [had been] used for the pur-
pose of illustrating the significance of the [French] suicide” and that the average
reader would not believe Dall had committed suicide. Even so, a New York
appellate court entered judgment for Dall on his defamation claim: “Charging a
named person with [improper] acts in what the context later shows to be a
fictitious narrative may . . . be libelous . . . if the result is to expose such person
to public shame or ridicule. . . . If publishers desire to use the names of living
persons by way of example or analogy of infamous acts and degrading crimes
merely to arrest their readers’ attention, they do so at their peril.”4
J O N E S V . E. H U L T O N & S O N S WA S D E C I D E D by the English courts in 1910,

unconstrained by the inhibitions of the First Amendment. Dall v. Time, Inc. was
decided in 1937, long before the Supreme Court’s decision in New York Times
Co. v. Sullivan. Even so, publishers who present fiction as fact continue to
encounter substantial risks.
In the 1981 case Embrey v. Holly,5 a radio performer was commenting on
an injury to Holly, a local newscaster. Against the background of a blizzard that
had led to extensive looting, Embrey said: “Too bad about Dennis Holly, though.
Hope he comes out okay. Wonder how he hurt his knee. Probably fell down
carrying that TV during the blizzard last week, right?” The court ruled that it
was a question for the jury whether the intended joke was understood as a joke
or as a charge that Holly had participated in the looting. Holly was a black
newscaster, and most of the looters had been black; the court judged that Holly
might be unusually sensitive about a charge of looting.6
In upholding a jury verdict in Holly’s favor, the Maryland appellate court
made two critical findings. First, the jury could reasonably conclude that Embrey’s
remark “conveyed to the minds of some listeners that Holly, a black man, was
associated with the looting that occurred during the blizzard, and that he in-
jured his knee while carrying [a] pilfered television set.”7 Second, the jury could
find that Embrey had “acted with reckless disregard of the fact that his state-
ment concerning Holly could be received by a reasonable listener as true”—that
is, Embrey “acted with a high awareness that the ‘joke’ relative to Holly could
be received as true.”8
The court’s ruling is correct. No significant First Amendment freedom is
jeopardized if publishers and other spokespersons are obliged to differentiate
between fact and fiction. If they choose to present fiction as fact, they run the
risk that they will be taken at their word and held accountable in defamation.
B U T I S E V E R Y S P O O F A N A P P R O P R I AT E B A S I S for liability in defamation? Harry

Hoppe, a county tax assessor, became embroiled in a public controversy when
he hired private detectives to trail a deputy assessor who had publicly charged
Hoppe’s office with wrongful assessment practices. It was further revealed that
Hoppe had secretly monitored county employees on other occasions. Although
the state’s attorney general sustained Hoppe’s practices as lawful, he was sub-
jected to sharp criticism in the press. Later that year he lost his post in a hotly
contested election.
Emmett Watson wrote a column in the Seattle Post-Intelligencer known to be
humorous and fanciful. He joined in the criticism of Hoppe with a column in
the form of a first-person narrative by “Philip Marlowe,” Raymond Chandler’s
fictitious private detective. In Watson’s story, Marlowe is visited by an unsavory
character who offers Marlowe $1,000 to follow county employees for “da boss,”
the county assessor “Hurley Herpes.” In the most pertinent part of the column,
Marlowe wonders where the money to hire investigators came from: “Don’t tell
me where he gets the money, I bet he hits quinella every day. . . . Or maybe he
just kind of ups a property assessment here and there and some of the money
drips over into the Private Eye Benevolent Fund.”9
Hoppe sued for defamation, invasion of privacy, and intentional or negli-
gent infliction of emotional distress. In a 1989 opinion a Washington appellate
court rejected his claims. It conceded that “[h]umorous and satirical statements
that imply defamatory facts can . . . be actionable,” but here no such statements
had been made. Watson often referred to public figures by nicknames, and the
reference to “Hurley Herpes” could not reasonably be understood as describing
an actual fact concerning Hoppe’s medical condition. Further, the column im-
plied no illegal behavior by Hoppe in misappropriating public funds or wrong-
fully increasing property assessments. Watson’s column, published in a unique
format distinguished from general news reporting, appeared in the context of a
well-publicized debate over Hoppe’s use of public funds to hire detectives: “Its
humorous tone and first-person narrative style further indicated that the col-
umn did not concern actual events.”10
Hoppe’s other claims were similarly rejected. The court relied on Hoppe’s
failure to show actual malice. In the context of satire, humor, or fiction, the
author probably did not intend the work to be completely truthful. Thus the
appropriate test is “whether the author intended, or recklessly failed to antici-
pate, that readers would construe the publication as a statement of defamatory
facts.” No such showing had been made in this case.11
Publishers have prevailed in numerous cases in which fictitious stories or
extravagant comments parodied or criticized public officers,12 public figures,13
businesspersons or entities,14 and—in a few cases—private persons.15 Promi-
nent persons or places may also be the subject of fictitious themes. For ex-
ample, a motion picture comedy used Notre Dame’s name in connection with
a fictitious and farcical football game. Notre Dame’s objection to this appro-
priation of its name was rejected. Viewers would not infer “that the antics
engaging their attention are anything more than fiction or that the real Notre
Dame is in some way associated with its fabrication or production.”16 Another
movie created a fictitious explanation of an incident in the life of Agatha Christie,
the famous mystery writer. The court ruled that no objection could be made
“where a fictionalized account of an event in the life of a public figure is de-
picted in a novel or movie, and in such novel or movie it is evident to the public
that the events so depicted are fictitious.”17
Some cases pose more difficult problems.
K I M E R L I J AY N E P R I N G WA S M I S S W Y O M I N G in the Miss America contest.

Penthouse carried an article about the contest, characterized as “Humor” in the
magazine’s table of contents. It described “Charlene,” a Miss Wyoming, who
during her baton-twirling exhibition engaged in a fellatio-like act on her baton,
stopping the orchestra with her performance. Charlene did not reach the finals,
but she thought she had a real talent. She speculated on whether she would save
the world by employing her real talent with the “entire Soviet Central Commit-
tee to prevent a Third World War? Marshall Tito? Fidel Castro?” She would be
the ambassador of love and peace. The article concluded with Charlene, clad in
a blue evening gown, performing an act of fellatio on her coach at the edge of
the stage while the audience was applauding the new Miss America at center stage.
The fellatio act caused the coach to levitate. The television cameras remained
on Charlene and her coach, who was rising in the air as the story ended.18
Pring sued for defamation. Persons who knew Pring testified that on read-
ing the article they had formed the view that the author had been referring to
Pring in her role as Miss Wyoming. The jury found that the article referred to
Pring and returned a verdict in her favor. In a 1983 opinion the U.S. court of
appeals reversed. It ruled that the article could not reasonably be understood to
make factual assertions about Pring:
The test is not whether the story is or is not characterized as “fiction,” “humor,” or
anything else in the publication, but whether the charged portions in context
could be reasonably understood as describing actual facts about the plaintiff or
actual events in which she participated. . . .
The charged portions of the story described something physically impossible in
an impossible setting. . . . [I]t is simply impossible to believe that a reader would
not have understood that the charged portions were pure fantasy and nothing
else. It is impossible to believe that anyone could understand that levitation could
be accomplished by oral sex before a national television audience or anywhere else.
The incidents charged were impossible. The setting was impossible.19
Even the witnesses for plaintiff testified that the story could not possibly be
about Ms. Pring as she would not have engaged in the acts described in the
story.
In a related proceeding, the Miss America Pageant sued Penthouse for the
damage to its reputation arising from the same article. In this case, decided in
1981, liability was rejected on the ground that all participants at Penthouse
reasonably believed the article was fiction and thus could not be charged with
actual malice in publishing a deliberate falsehood: “[T]here is no evidence from
which the court can infer that defendant was in a position to know the truth,
e.g., by having attended a pageant or by receiving a letter from plaintiff prior to
publication.”20
Where, as here, the issue is whether the publisher should be held account-
able for the possible malfeasance of an independent contributor, the publisher’s
reasonable beliefs are critical. The article at issue provided an abundance of
clues that the story was a fantasy, not to be taken literally. The decision to
exonerate the publisher in such circumstances is sound.
But the Pring litigation posed a more challenging issue. Philip Cioffari, the
author of the article, was a defendant in Pring, although not in Miss America
Pageant. He had attended the Miss America contest in Atlantic City, New
Jersey, at which Pring was competing as Miss Wyoming. She performed as a
baton twirler and wore a blue evening gown, the same as the talented Charlene.
Granted that Penthouse cannot be held accountable for what it did not know in
publishing a work it reasonably regarded as wholly fictitious, what is Cioffari’s
responsibility? Is he free to craft a character bearing such a similarity to Pring

as to be recognizable by her friends and associates and then attribute to her an
outrageous course of conduct no one would believe? It cannot be defamatory to
say incredible and unbelievable things even about an identifiable person. Allega-
tions not accepted as factual cannot impair reputation. But is there another
basis for liability?
If Pring were a public figure, she could not recover for intentional (or
unintentional) infliction of emotional distress. That was the ruling in Hustler
Magazine v. Falwell.21 But if Pring were a recognizable private person, she might
have a valid claim (see the discussion of ridicule by pornography in Chapter
17). The court of appeals peremptorily dismissed this aspect of the case despite
its refusal to hold that Pring was a public person.22 The issue deserved more
careful consideration.
TO R E C A P I T U L AT E O N T H I S B R A N C H O F T H E L AW :
The first inquiry is whether a reasonable reader would understand that the
fictitious work was indeed fiction. If so, no defamation action may be brought.
As discussed in connection with Pring, a private person might have another
claim, such as intentional infliction of emotional distress. More on this point in
Chapter 36.
If a reasonable person would view the fiction as fact, the responsibility of
the publisher must be considered. One approach would ask whether the pub-
lisher knew, or had reason to know, that its fictional representation would be
understood as factual. Under this approach a test equivalent to New York Times
Co. v. Sullivan and Gertz could be formulated: the publisher must act with
intent or with reckless disregard of the truth if the plaintiff is a public figure and
negligently if the plaintiff is a private person. Artemus Jones could not recover
absent proof of negligence (he clearly was a private person); the plaintiff in
Embrey v. Holly would have to show actual malice (he was conceded to be a
public figure). In fact, the court in Embrey found that the broadcaster had made
the supposedly jocular utterance with reckless disregard—that is, with a high
degree of awareness that it could have been understood by listeners to be a
statement of fact. These standards of culpability are appropriate if there is a
means by which a defamed person can clear his name—by procedures that
induce a retraction or a correction when circumstances warrant. In this context
plaintiff ’s grievance is that the publisher’s intended fiction has gone awry: rea-
sonable readers viewed the story as factual. If the misapprehension is corrected
by a timely clarification, the plaintiff ’s grievance is substantially rectified with-
out imposing undue burdens on the publisher (see Chapters 24 and 25). An
appropriate balance has been struck.
Absent a procedure ensuring appropriate retraction or correction, pub-
lisher liability should be strict in most cases. Journalists face intrinsic difficul-
ties in getting their facts straight, and some latitude is appropriate under New
York Times Co. v. Sullivan and Gertz. But publishers usually face no comparable
obstacles in segregating fiction from fact and attaching appropriate labels in
instances in which reader confusion is a significant possibility. That was the
case in Jones and Embrey—or so a jury could have found. Dall is clearly wrong
in view of the jury’s finding in that case that the average reader would not have
been misled. Dall should be repudiated. The outcome in Miss America Pageant
should not be disturbed: if a publisher reasonably believes it is publishing fic-
tion, it should not be held accountable for factual assertions expressed in the
writing that it took to be part of the fictitious narrative.
T H I R T Y - S I X
JUSTICE À LA CORRIGAN
S O M U C H F O R F I C T I O N P R E S E N T E D A S FA C T . Is there a problem if the tables

are turned and fact is presented as fiction?
Bobbs-Merrill Company published a novel authored by George Bronson
Howard entitled “God’s Man.” The story concerned the protagonist’s adven-
tures in the New York City underworld. One chapter—entitled Justice à la
Corrigan in the table of contents and Justice à la Cornigan in the book itself—
introduced a magistrate of Jefferson Market Court named Cornigan, described
as “ignorant, brutal, hypocritical, corrupt,” and otherwise unsavory. A later
chapter portrayed Cornigan “even more offensively as an associate of low and
depraved characters.” James E. Corrigan was a magistrate of the city of New
York who frequently sat at Jefferson Market Court. He sued Bobbs-Merrill for
defamation, contending that he was the character described in the book and
that the book’s descriptions of him were false and defamatory. Bobbs-Merrill
defended on the ground that it had published a supposedly fictitious narrative
in good faith; it had not known of Corrigan and had harbored no intent to
injure him.1
The New York court of appeals, in a 1920 opinion, ruled that as long as the
book was found to be “of and concerning” Corrigan, Bobbs-Merrill was charge-
able with publishing defamatory matter even though it had been unaware of
Corrigan’s existence or that the book had been about any existing person. Fol-
lowing the ruling in the Artemus Jones case (discussed in Chapter 35), the court
held that the defendant “publishes at his peril. . . . The question is not who was
aimed at but who was hit. . . . [The publisher’s] remedy is to refrain from
JUSTICE À LA CORRIGAN 281
defamatory words. . . . Publishers cannot be so guileless as to be ignorant of the

trade risk of injuring others by accidental libels.” Accordingly, Corrigan’s claim
for compensatory damages was sustained.
Corrigan also sought punitive damages. To recover, Corrigan had to show
that Bobbs-Merrill or its staff were aware that the challenged chapters of the
book were directed at Corrigan and intended to harm him. There was evidence
that the author, Howard, entertained feelings of bitterness and hatred toward
Corrigan arising out of his personal experiences before the magistrate as a defen-
dant on a criminal charge. Moreover, there was evidence that Hewett Hanson
Howland, Howard’s literary editor at Bobbs-Merrill, “was negligent and reck-
less in not at least seeking from Howard some information as to whether the
author’s diatribes were intended as mere generalizations or as offensive person-
alities, and, if the latter, whether they were fair criticism.” The punitive dam-
ages phase of the case was remanded for further proceedings.2
A similar problem was posed in Fetler v. Houghton Mifflin Co.3 Andrew
Fetler wrote a first novel entitled “The Travelers.” It told the story of a family
traveling about Europe in the 1930s. One of the characters in the book was
“Maxim,” the eldest son, of whom allegedly defamatory comments were made—
for example, that he had eagerly cooperated with a Nazi organization for the
easy money it had paid him and that in a frantic pursuit of money he had
abandoned his father on his deathbed. Daniel Fetler, Andrew’s brother, claimed
the family in the book was the Fetler family and that the Maxim in the book was
him. The book paralleled real life in a great many details. As in the book, the
Fetler family had a father, mother, and thirteen children, of whom ten were
boys and the third, fourth, and eighth were girls; the eldest child (Daniel) was
male, twenty-three years old in 1938, and of Latvian nationality; the family
journeyed through Europe during the 1930s in an old bus; the father was a
Russian Protestant minister whose wife and children performed as a band and
choir wherever the father preached; and Daniel was responsible for the family’s
temporal needs and in that capacity dominated other family members.4
The U.S. court of appeals refused to dismiss the complaint. If the book
sufficiently identified plaintiff and defamed him, defendant was strictly liable
under Corrigan. The book had contained the usual disclaimer emphasizing the
characters’ fictional nature. But the plaintiff had submitted affidavits from vari-
ous readers stating they had recognized Maxim in the book to be the plaintiff
Daniel. Considering the similarities between the book and the Fetler family’s
experiences, a jury could reasonably have found that Maxim was a portrayal of
Daniel Fetler.5
T H E P O T E N T I A L F O R D E FA M AT I O N I S E N H A N C E D if a fictional work is mar-

keted as if it were historical fact. For example, Robert E. Burns escaped from a
chain gang and, while a fugitive, wrote a book, “I Am a Fugitive from a Georgia
Chain Gang.” In the book Burns made defamatory statements about the Geor-
gia prison commission of which Vivien Stanley was a member in the pertinent
time period. Warner Brothers, using a script written by Burns, made a movie,
I Am a Fugitive from a Chain Gang. The movie was expressly linked to the book,
and its advertising depicted it as a factual representation of life on a Georgia
chain gang. Stanley’s action for defamation against the movie producer was set
for trial not only as to defamatory material in the movie itself but also for
defamations uttered solely in the book, to which the movie was explicitly linked
by the company’s advertising.6
“They Were Expendable” was William White’s factual account of the experi-
ences of the crew of a PT boat during World War II. Loew’s made a movie of the
same name following the book closely, but the movie fictionalized one of the char-
acters; “Rusty Ryan” in the movie (played by John Wayne) was patterned after the
real-life Lieutenant Robert Kelly. Kelly sued for defamation, claiming the movie
depicted him as “headstrong, undisciplined, aggressive, resistant to orders and self-
seeking.” The court found that Kelly and the fictitious Ryan were different in
physical appearance, temperament, and name but held for Kelly nonetheless. Re-
ferring to the movie’s explicit link to White’s book, the use of actual historical
events, and the movie’s statement about U.S. Navy cooperation, the “disingenuous
legend that the persons and events shown in the picture were fictitious and that any
similarity to persons living or dead was purely coincidental would not have been
treated by the average person . . . as any more than a tongue-in-cheek disclaimer.”7
An episode of the television series The Untouchables depicted the transfer of Al
Capone from a federal penitentiary in Atlanta, Georgia, to Alcatraz. The program
had the appearance of authenticity, and the basic facts of the transfer conformed to
the historical record. A fictional aspect of the episode involved the bribery of a
guard to assist Capone in an escape attempt. E. L. Simpson alleged that he had
been a prison guard who had accompanied Capone and others during the transfer
and that the episode had defamed him by portraying him as corrupt and as in-
volved in a related incident of violence. The court sustained the complaint as
sufficient to justify a trial even though the fictitious guard did not have plaintiff’s
name (or any similar name) and did not look like plaintiff: “[T]he semi-fictional
portrayal of a real life event is fraught with the possibility that the public, or at least
that segment of the public that knows the plaintiff, will believe that the presen-
tation refers to the plaintiff.” Simpson was entitled to submit to a jury the
question of whether the television episode depicted him as the corrupt guard.8
The Stanley, Kelly, and Simpson cases were decided prior to New York Times
Co. v. Sullivan. No doubt they were influenced by the common law rule impos-
ing strict liability for defamatory utterances “of and concerning” an identifiable
plaintiff. The same is true of Corrigan and Fetler. Yet the outcomes in most of
these cases are sustainable under contemporary standards. The allegedly ficti-
tious portrayals in Corrigan and Fetler were thinly disguised efforts to defame
identifiable persons; the works should be treated today as if they had been
offered as factual narratives—with liability turning on falsity and a showing of
requisite culpability (actual malice in Corrigan, negligence in Fetler). The pre-
tense in Stanley, Kelly, and Simpson was of a different kind—the fictions were
represented as faithful reproductions of the past, and thus the standards appro-
priate for factual narratives appear appropriate under New York Times Co. v.
Sullivan: a showing of falsity and of requisite culpability (actual malice in Stanley
and Simpson, possibly negligence in Kelly). On the facts disclosed in the various
judicial opinions, liability would seem appropriate for the authors in Corrigan
and Fetler and for the producer in Kelly. Deliberate distortions of the truth were
calculated to mislead the reader or the viewer as to identifiable persons. Stanley
and Simpson are less certain because it is not clear that the producers in those
cases had intended to utter lies or had acted with reckless disregard of the truth
concerning identifiable individuals.
I N A N U M B E R O F O T H E R I N S TA N C E S , fictions based on fact have escaped the

snare of defamation. For example, Yankee Doodle Dandy was a fictionalized
movie of the life of George M. Cohan (played by James Cagney in the film).
Cohan’s movie wife (played by Joan Leslie) was named “Mary.” Ethel Levey was
George M. Cohan’s first wife, and she sued for invasion of privacy for the
unauthorized use of her name and likeness in the movie. In real life Ethel Levey
had divorced Cohan early in his career; both had remarried. In the movie Mary
remained with Cohan to the end. With one exception, the fictitious Mary did
not portray any character Levey had played or sing any song she had sung. Joan
Leslie did not look or act like Levey: “Similarities, if any, between the events of
plaintiff ’s life and the episodes shown in the picture are too insignificant to
characterize the plaintiff and are merely incidental to the theme of the picture.”
No one who knew or saw plaintiff or heard her sing would reasonably be led to
believe Joan Leslie portrayed the plaintiff.9
In another movie case Victoria Lincoln wrote a book, “February Hill,”
about growing up in Fall River, Massachusetts. It included descriptions of the
Wright family from the same locality. The book provided the basis for a play
that provided the basis for a movie, Primrose Path. In the movie two female
characters, “Mamie Adams” and “Ellie Mae Adams,” were described in a de-
famatory way. Plaintiffs, members of the Wright family, claimed the movie had
defamed them. The court disagreed. The movie had not used plaintiffs’ names,
the locale had been moved to California, the name of the hill on which the
characters had lived also had been changed, and the cause of the plaintiffs’
father’s death in the movie was entirely different from actual events. The book
and play were used as mere sources of incident, plot, and characterization but
in such a way that the characters would not be identified with the Wright family.
Plaintiffs had been unable to show that any third person had thought the picture
was about them.10
Levey and Wright seem sound. In each, the publishers had taken extensive
measures to distance themselves from the plaintiffs allegedly defamed. In other
cases also denying liability, authors made more modest efforts but were exoner-
ated nonetheless.11
F O R E X A M P L E , T H E M O V I E M I S S I N G was based on a book by Thomas Hauser

titled “Execution.” The book’s accuracy had not been challenged. The movie
and the book told the story of the efforts of the Horman family to find their son
Charles, an American residing in Chile at the time of the Allende coup. At first,
Charles could not be located; subsequently, he was found to have been executed
by the revolutionary regime. The book traced the possible involvement of U.S.
embassy officials in Charles’s disappearance and death and depicted their inad-
equacies in assisting the Hormans in their search. In the movie one character,
“Ray Tower,” was “the symbolic fictional composite of the entire American
political and military entourage in Chile.” Ray Davis was the person who had
actually been in charge of the U.S. mission in Chile at the time of Horman’s
disappearance. He claimed the Ray Tower of the movie was intended to repre-
sent him and, as such, defamed him.12
In rejecting the defamation claim, the court emphasized that the movie was
a “dramatization of a true story,” not a documentary. As to nine scenes chal-
lenged by Davis, the court observed:
Each was permissible literary license to fit historical detail into a suitable dramatic
context. Such dramatic embellishments as are made do not distort the fundamen-
tal story being told. . . . [T]he dramatic overlay supplied by the film does not serve
to increase the impact of what the plaintiff charges as defamatory since it fairly and
reasonably portrays the unassailable beliefs of the Hormans, the record thereof in
the Hauser book, and the corroborative results of the authors’ inquiries. In
docudrama, minor fictionalization cannot be considered evidence or support for

the requirement of actual malice.13
Although the court premised its decision on Davis’s failure to prove actual
malice, a more straightforward explanation would be that given the composite
nature of the Ray Tower character, the story told by the movie was substantially
true; accordingly, it was not vulnerable to a charge of defamation despite “mi-
nor fictionalization.” This point is vital. Neither docudrama nor any other form
of dramatized truth is immune to a defamation challenge if the truth is misrep-
resented in a material respect with the requisite degree of culpability.14
A S O M E W H AT D I F F E R E N T P R O B L E M I S P R E S E N T E D when the complaint is that

the writer of fiction used the exact name or other clearly identifiable features of
the plaintiff. For example, Orlando Petrocelli wrote a book entitled “Match
Set” concerning the odyssey of a female transsexual athlete through the allegedly
corrupt and corrupting world of women’s professional tennis. Innocent and
naive at the outset, the book’s protagonist was induced to participate in a fraud
and was lured into extravagant sexual conduct graphically portrayed. The name
of the protagonist was “Melanie Geisler,” described as young, attractive, and
honey-blonde, with a firm and compact body. Immediately prior to writing the
book, Petrocelli had worked with the plaintiff, also named Melanie Geisler, and
the two had been casual acquaintances. Geisler’s physical traits were similar to
those of the fictional character, and she sued for defamation on the ground that
the use of her exact name, the commonality of physical traits, and the fact that
she had been acquainted with Petrocelli had caused reasonable persons to un-
derstand that Geisler was the fictional character acting in the disreputable ways
described in the book. The book was promoted as a work of fiction and set
forth the standard disclaimer that there was no intentional resemblance be-
tween its characters or episodes and real persons and actual incidents.15
The district court dismissed the complaint on the ground that the book was
not “of and concerning” Geisler. The court of appeals reversed, allowing plain-
tiff an opportunity to develop further evidence: “Perhaps appellant’s circle of
friends corresponds in some degree to characters in the book, or perhaps she
was once an athletic prodigy. Counsel may also produce affidavits from indi-
viduals stating that upon reading or hearing of ‘Match Set’ they believed the
protagonist to be derived from the plaintiff.”16 The court described the plaintiff ’s
burden as a substantial one: “[T]he reasonable reader must rationally suspect
that the protagonist is in fact the plaintiff. . . . This points up the disturbing
irony inherent in the scheme: the more virtuous the victim of the libel, the less
likely it will be that she will be able to establish this essential confusion in the
mind of the third party.”17
The dilemma posed by the court can be resolved by asking two questions:
1. Would friends and acquaintances of Geisler, on reading “Match Set,” believe she
was a tennis pro and a transsexual who had been engaged in fraudulent schemes
and sexual escapades? If so, the book is defamatory. If not, the book may insult
and ridicule Geisler, but it does not defame her because it does not assert
believable factual propositions about her.
2. Despite the lack of believability—assume that no one for a moment believed

Geisler was a transsexual, a perpetrator of fraud, or a sexual adventuress—the
deliberate use of her name and physical characteristics may be actionable as
intentional or reckless infliction of emotional distress if Geisler can show severe
distress. Despite the label of fiction, the case is easier than Pring, discussed in
Chapter 35, because plaintiff in this case is without question a private person
and the defendant clearly aimed his barbs at her.
L I S A S P R I N G E R A N D R O B E R T T I N E maintained a close personal relationship

while the two were students at Columbia University. After three years they
separated on decidedly unfriendly terms. Thereafter Tine, who had been writing
a novel entitled “State of Grace,” incorporated a new chapter in his book intro-
ducing the reader to “Lisa Blake.” The Lisa of the novel had the same personal
and physical characteristics as the Lisa of real life, including educational back-
ground, recreational preferences, place of residence, and personal habits. But
the Lisa of the novel moved on from Columbia and her apartment on 114th Street
to become a prostitute and subsequently a mistress to a corrupt Italian industrial-
ist, displaying extraordinary sexual prowess. The real Lisa continued to live on
114th Street and was employed as a tutor at the college level. On Lisa Springer’s
suit for defamation, the New York appellate court ruled that neither superficial
similarities nor the same first name was sufficient; the two images must be so
closely akin that a reader would have no difficulty linking them.18 Here:
[P]laintiff is a tutor on the college level while Blake, described as a “whore,” held
“the title deed for a coop apartment in the Olympic Tower on Fifth Avenue,” . . .
receiving a “salary” of seventy-five thousand dollars[,] and . . . drove a BMW. Blake
lived luxuriously. There is no indication of plaintiff ’s manner of living except as
can be inferred from the nature of her work. . . . [T]he dissimilarities both in
manner of living and in outlook are so profound that it is virtually impossible to
see how one who has read the book and who knew Lisa Springer could attribute
to Springer the lifestyle of Blake.19
Yet someone who knew Springer and Tine wrote in a letter, “I have read
Robbie’s book and am absolutely amazed that he has put Lisa into it—under
her own name!—as a psychology student who has become a high class prosti-
tute. What a childish revenge!”20 Are the courts powerless to deal with such
gratuitous acts of cruelty?
N E I T H E R G E I S L E R N O R S P R I N G E R G O T I T R I G H T . But one court did. Moses

Polakoff was a lawyer who had participated in defending the gangster Lucky
Luciano in a criminal prosecution in the 1930s. Luciano had ultimately been
convicted and sentenced to prison. During World War II Polakoff had accom-
panied officers of the U.S. Naval Intelligence Service in visiting Luciano in jail
to seek his assistance on some military matters. In the 1970s Harcourt Brace
published a novel entitled “The Algonquin Project” in which two ambitious
aides on General Eisenhower’s staff organized a wartime conspiracy to assassinate
an American general modeled after General George Patton. During their plotting
the conspirators sought the aid of Lucky Luciano, then in prison. The book
described a visit by Moses Polakoff to the prison with an O.S.S. officer who had
sought to enlist Luciano’s aid in procuring an assassin in Europe: “There is no
dispute that the incidents described in the novel intended in some fashion to
parallel Polakoff’s wartime experience.” But the described events had not occurred.21
On Polakoff ’s defamation claim, the trial court ruled that Polakoff did not
become a public figure by reason of his representation of a notorious criminal
forty years earlier and that the novel did not qualify as a discussion of a matter
of public concern. The jury was charged that to impose liability it must find that
Harcourt Brace was negligent in failing to discover that Moses Polakoff was a
living person and that “a reader of average intelligence would conclude that the
author intended the reader to believe that Moses Polakoff participated in pro-
curing an assassin as described in the book.” The court sustained a jury verdict
in favor of Harcourt Brace on the defamation count.22
The judge did conclude, however, that the jury had sufficient basis for
holding the defendant liable for violating the plaintiff ’s privacy. Despite Polakoff ’s
testimony concerning his emotional distress—“For a while I was so aggravated
I didn’t do anything”—the court found no evidence of diminished reputation or
economic loss or personal distress requiring medical attention. An award of
$10,000 in damages was sustained by the judge and upheld on appeal as suffi-
cient to compensate Polakoff for the distressing affront.23
Whatever may be the case for public figures, private persons need not be
conscripted to play villainous roles in works of fiction. Authors must build on
their own experiences, but they need not shape their fictitious characters to
mimic private persons with a degree of fidelity that renders them recognizable
to, and subjects them to ridicule or pity from, their acquaintances.24 Authors
are free to write factual narratives, adhering to the truth with the requisite
degree of care. Or they can write fiction, taking appropriate care not to inflict
gratuitous harm on innocent private persons. They have a choice. They cannot
have it both ways.
A P R O B L E M R E M A I N S A S T O F I C T I O N B A S E D O N FA C T in which the author

makes a bona fide effort to disguise the identity of the plaintiff, but the dis-
guise fails and at least some of the plaintiff ’s acquaintances identify him as the
protagonist in the work of fiction. Paul Bindrim was a licensed clinical psy-
chologist who conducted a “Nude Marathon” in group therapy as a means of
helping people shed their psychological inhibitions by removing their clothes.
Gwen Mitchell was a writer who enrolled in one of Dr. Bindrim’s sessions on
the false representation that she was attending the marathon solely for thera-
peutic reasons and would not write about it. Mitchell subsequently wrote a
novel about a nude encounter session, published by Doubleday under the title
“Touching.”
In Mitchell’s novel “Dr. Simon Herford” led the therapy session. He was
described as a “fat Santa Claus type with long white hair, white sideburns, a
cherubic rosy face and rosy forearms.” Dr. Bindrim was clean shaven and had
short hair. Despite the difference in name and appearance, the California court
of appeal concluded that the character Simon Herford was very similar to the
real-life Paul Bindrim. Three witnesses identified them as one and the same,
and Mitchell’s tape recordings of the nude marathon showed that the novel was
based substantially on Dr. Bindrim’s conduct during the marathon. Mitchell’s
book, however, included much that was not reflected in the tapes, portraying
Bindrim as using obscene language and treating his patients in an aggressive
and unprofessional manner—cursing at them and “pressing,” “clutching,” and
“ripping” a patient’s cheeks and “stabbing against a pubic bone.”25 Bindrim
sued Mitchell and her publisher for libel.
Having found that Bindrim was identifiable as the novel’s protagonist and
that the statements made about him were defamatory, the court considered
what weight to give the defendants’ contention “that the fact that the book was
labeled as being a ‘novel’ bars any claim that the writer or publisher could be
found to have implied that the characters in the book were factual representa-
tions not of the fictional characters but of an actual non-fictional person.”
The test is whether a reasonable person, reading the book, would understand that
the fictional character therein pictured was, in actual fact, the plaintiff acting as
described. . . . Whether a reader, identifying plaintiff with the “Dr. Herford” of the
book, would regard the passages herein complained of as mere fictional embroider-
ing or as reporting actual language and conduct was for the jury. . . . [It was]
irrelevant whether all realized plaintiff and Herford were identical.26
The court of appeal sustained a judgment for $50,000 compensatory damages

and $25,000 punitive damages.
A dissenting judge argued that the three witnesses who had testified that
they had recognized the plaintiff as the fictitious Dr. Herford had done so solely
on the basis of the therapy practiced; all three had participated in or observed
one of plaintiff ’s nude marathons. Yet the plaintiff had no monopoly on encoun-
ter therapy in the form of a nude marathon; others employed a similar practice:
“From a constitutional standpoint the vice is the chilling effect upon the pub-
lisher of any novel critical of any occupational practice, inviting litigation on
the theory ‘when you criticize my occupation, you libel me.’ ” The majority
decision “poses a grave threat to any future work of fiction which explores the
effect of techniques claimed to have curative value.”27
The dissent is right. The majority provides no meaningful opportunity for
an author to incorporate life experiences in legitimate works of fiction without
having someone say “That’s me!”28 If that someone finds others who will attest
to the identification of the fictional character as plaintiff, plaintiff goes to the
jury on the question of identification no matter how extensive the author’s
efforts at disguise. The Bindrim opinion fails to consider issues of culpability,
particularly acute where, as here, a work is expressly labeled as fiction and there
is neither a sham disguise nor a use of plaintiff ’s name or any similar-sounding
name.
A further issue, not yet definitively adjudicated in the context of fiction,
involves the use of real persons in fictitious circumstances—so-called faction.
Robert Coover’s “The Burning” is an example. Richard Nixon’s role in a num-
ber of fanciful and fantastic contexts in the book is pure fiction—although the
man and his physical and temperamental characteristics are not.29 In the case of
public figures, Hustler Magazine v. Falwell provides the test: if the statements
are not believable as factual assertions, they are not actionable. From the author’s
perspective, the more fantastic the better! Extrapolating fiction from fact is
intrinsic to satire and parody. The original must be recognizable in order to be
mocked. A work may be factual in part but then depart from believable propo-
sitions to enter the domain of the absurd.30 Literary extrapolation is beyond
challenge in defamation as long as it is made clear to the reader, through
disclaimers or other signals, that otherwise defamatory characterizations are

not to be taken at face value.
Sometimes the line between fact and fiction is not maintained with the
requisite clarity. For example, Paul Marcinkus, an archbishop in the Roman
Catholic Church, achieved notoriety when he became embroiled in a public
controversy concerning the Vatican Bank. Despite the fact that he was a limited
public figure, he was accorded standing to complain when his name, status, and
characteristics were used in a work of fiction “to give a sense of historical
accuracy.” The New York court found a triable issue as to whether readers
would believe the work was wholly fictitious and that no connection existed
between the archbishop in the book and the plaintiff. It was “arguable that the
actual malice standard would be satisfied even though the work is labeled a
fiction.”31
Private persons have a much stronger claim not to be incorporated in an
author’s flight of fancy. If an author wants to write about a female tennis pro
who is a transsexual drawn to fraud and sexual adventure (Geistler) or a college
student who becomes a prostitute and a mistress (Springer) or a lawyer who
seeks to procure an assassin (Polakoff ), the cupboard is not so bare that private
identities must be appropriated for the purpose. By hypothesis, these are not
people known to the public at large for particular propensities. Identifying them
serves no legitimate artistic or journalistic function, since the identification is
meaningless to the great preponderance of readers or viewers. The only purpose
of such identification is to inflict gratuitous pain.
I N S U M , T H E W R I T E R O F F I C T I O N I S E F F E C T I V E L Y S H I E L D E D from claims
sounding in defamation, privacy, and emotional distress if he observes a few
guidelines:
1. The work does not make a readily identifiable person the target for defamatory
utterances only nominally designated as fiction (as in Corrigan and Fetler).32
2. The work does not purport to be true to life and authentic (as in Stanley, Kelly,
and Simpson).
3. The work does not appropriate the name or likeness of an identifiable private
person (as in Geisler, Springer, and Polakoff ).33 (Pring, discussed in Chapter 35,
is a borderline case.)
Finally, Bindrim poses a threat to the free expression of legitimate, non-

fraudulent fictitious themes. It should be repudiated.
T H I R T Y - S E V E N
THE IMPACT OF THE INTERNET
T H E S P E C TA C U L A R G R O W T H O F T H E I N T E R N E T as a medium of expression
has profoundly impacted the laws of defamation, of privacy, and of intentional
infliction of emotional distress. More dramatic changes can be expected in the
future.
DEFAMATION
Matt Drudge published the Drudge Report, a gossip column, over the Internet.
In 1997 Drudge had three channels of distribution: his own website, e-mail
messages sent regularly to about a thousand persons who had expressed inter-
est, and a site on America Online (AOL). AOL was the only source of revenue
for Drudge: it paid him $3,000 a month to carry the Drudge Report. (AOL’s
contract with Drudge also gave AOL the right to reject or amend items he
submitted.) AOL advertised the presence of the Drudge Report on its Internet
service to attract new subscribers to that service.
Sidney Blumenthal was appointed an assistant to President Clinton in 1997.
On August 10 the Drudge Report carried an item entitled “Charge: New White
House Recruit Sidney Blumenthal Has Spousal Abuse Past.” The story was
carried on AOL as well as on the other modes of distribution Drudge managed.
The charge was unfounded, and upon receiving objections from the Blumenthals,
Drudge on August 11 and 12 issued retractions on both his own site and the
AOL site. Later he publicly apologized to the Blumenthals. He claimed he had
been duped by Republican operatives who had been seeking to embarrass Clinton’s
Democratic administration.1
Sidney Blumenthal and his wife, Jacqueline, sued Drudge and AOL for
defamation. The claim against Drudge dragged on for years, but the claim
against AOL was rejected at the outset. A U.S. district court ruled that AOL
was protected by a provision of the Communications Decency Act of 1996
stating: “No provider or user of an interactive computer service shall be treated
as the publisher or speaker of any information provided by another information
content provider.”2 The latter term was defined as “any person or entity that is
responsible, in whole or in part, for the creation or development of information
provided through the Internet or any other interactive computer service.”3 In
the context of this litigation, Drudge was the information content provider, and
AOL was the provider of an interactive computer service. Although conceding
that AOL could also have been classified as an information content provider if
it had participated in any way in editing the story about the Blumenthals, the
court ruled that AOL’s passive acquiescence—its failure to exercise its contrac-
tual veto power—did not make it a participant in the creation or development
of the Blumenthal story.
The court recognized the merit of the Blumenthals’ claim that AOL should
not “be permitted to tout someone as a gossip columnist or rumor monger who
will make such rumors and gossip instantly accessible to AOL subscribers and
then claim immunity when that person, as might be expected, defames an-
other.”4 But the court felt obliged to follow the direction of Congress even
where, as here, the service provider (AOL) had paid a fee to the content pro-
vider, had advertised the latter’s presence on its service, and had retained the
right to edit the content provider’s offerings.
Blumenthal v. Drudge has been criticized for casting the cloak of immunity
too broadly.5 To the extent that service providers act solely as intermediaries—
enabling their users to send and receive e-mail messages, to participate in chat
rooms and bulletin board postings, and to establish and maintain personal or
commercial websites—immunity seems proper and is consistent with rulings
on other types of intermediaries discussed in Chapter 16. But the provision of
the Communications Decency Act, as interpreted in Blumenthal v. Drudge,
goes well beyond the prior rulings and beyond the need to protect neutral con-
duits of communications.
S O M U C H F O R I N T E R M E D I A R I E S . What of persons like Matt Drudge who

actually formulate and promulgate offensive messages? The Drudge litigation
never addressed this issue (the parties reached an out-of-court settlement), but
Drudge had argued that an Internet journalist should be afforded more latitude
THE IMPACT OF THE INTERNET 293
under the law of defamation than conventional journalists. He pointed out that
he and others similarly situated did not retain teams of lawyers; that they were
engaged in almost instantaneous publication, in some cases responding to events
within minutes; that corrections and retractions could be made on their service
offerings easily and promptly; and that the Internet afforded widespread oppor-
tunities for responses by those who believed they had been wronged.6 One or
more of these points have been picked up by commentators seeking to loosen
the law of defamation as it applies to communications over the Internet.7
As to enterprises like the Drudge Report, the arguments are without merit.
Matt Drudge, like any other publisher, must make decisions about how rapidly
to publish, how much substantiation he should seek, and how often he should
ask for legal advice. Many print and electronic media proceed without teams of
lawyers, and time pressures are an unrelenting fact of life in most forms of
journalism. The supposed right of reply is an illusion. Suppose the Blumenthals
had established their own website and used it to reply to the charge made by the
Drudge Report. How many readers of the Drudge Report will think to check the
Blumenthal website or even know of its existence?
The one point that has some merit is the ease and rapidity of correction or
retraction. Under current law a prompt retraction is advantageous in mitigating
damages and in tending to negate actual malice (a deliberate fabrication or a
reckless disregard for truth). Moreover, the Internet is an ideal medium for
implementing the proposals made in Chapters 24 and 25 as regards publica-
tions like the Drudge Report. More than publishers in any other medium, Drudge
can provide assurance that the correction or retraction will reach the recipients
of the original defamatory statement with rapidity and with a high degree of
confidence that most or all of the original recipients will see the correction or
retraction. But unless and until the proposed new regime is implemented, Drudge
and his colleagues must labor under the constraints of the present law.8 Many
mainstream publishers have Internet sites. In the few cases litigated to date,
conventional defamation criteria have been applied.9
B U T P E R S O N S O T H E R T H A N J O U R N A L I S T S use the Internet. Should they

be subject to the same standards as journalists? On April 25, 1995, an un-
known person posted an advertisement on AOL entitled “Naughty Oklahoma
City T-Shirts.” The ad offered to sell T-shirts relating to the April 19 bombing
in Oklahoma City in which 168 persons were killed. The shirts bore offensive
slogans such as “Visit Oklahoma . . . It’s a BLAST!!!” and “Finally a day care
center that keeps the kids quiet—Oklahoma 1995.” The ad told prospective
buyers to call “Ken” at the home telephone number of Kenneth Zeran in Se-
attle.10 Zeran had nothing to do with placing the offensive message, and he first
became aware of its existence when he began receiving angry and derogatory
calls—some including death threats. At Zeran’s request, AOL removed the un-
authorized ad, but it refused to issue a retraction. Similar ads appeared on
succeeding days, stimulating further calls. At their peak, Zeran was receiving
about one abusive telephone call every two minutes. Zeran could not discon-
nect his phone or change his number because he ran a publishing business out
of his home, and his clients had to be able to reach him. On May 1 radio
station KRXO in Oklahoma City reported the Internet posting and urged still
more calls to Zeran. By May 14, after KRXO had made an on-the-air apology
and an Oklahoma City newspaper had exposed the hoax, abusive telephone
calls to Zeran declined to about fifteen per day.11
Despite the ordeal he had been through, Zeran was left with no remedy. AOL
was protected by the Communications Decency Act (discussed in Blumenthal v.
Drudge), and the party who had posted the messages could not be sued because
AOL’s poor record-keeping methods prevented Zeran from identifying him or
her.12
Apart from such obviously outrageous abuses as the advertisement in Zeran,
the Internet has become a vehicle for airing grievances by disgruntled employ-
ees, unhappy customers, and disillusioned investors (and indeed by anyone
with a grudge). How should these be treated?
In a thoughtful article, Professor Lyrissa Barnett Lidsky urges a lower stan-
dard of culpability in such cases.13 Airing grievances over the Internet affords a
degree of empowerment for “John Doe” in his battles against a variety of estab-
lished interests. She discusses a number of pending cases (as yet unresolved):
1. Peter Krug was a disgruntled former employee of HealthSouth Corp., a large

firm operating numerous rehabilitative health facilities. Krug, using a pseud-
onym, posted comments on a Yahoo! Finance message board dedicated to
discussing the affairs of HealthSouth. He accused Richard Scrushy, the chief
executive officer of HealthSouth, of numerous improprieties including “bilking
. . . Medicare reimbursement.” He also claimed that he, Krug, was having a
sexual relationship with Leslie Scrushy, Richard’s wife. The couple sued Krug
for libel and for intentional infliction of emotional distress.14
2. Hitsgalore.com was an Internet company that had failed to live up to its early
promise and had inflicted serious losses on investors. Some of these actively
posted Internet messages charging Hitsgalore and its officers of a “scam” and a
“fraud” and denouncing the officers as “criminals,” “crooks,” and “con men” who
had lied to the Securities and Exchange Commission (SEC) in constructing a
“classic pyramid scheme.” Hitsgalore and its officers brought libel actions against
the critics.15
3. John Osborne and Glenda Woodrum rented a U-Haul truck and experienced
severe difficulties with the vehicle. Unable to obtain satisfaction from U-Haul or
the Better Business Bureau, they started a website on which they expressed their
grievances and invited others to report their unhappy experiences with U-Haul.
They called it “The U-Hell Website: Adventures in Moving.” U-Haul sued
Osborne and Woodrum for defamation.16
Lidsky’s thesis is that the plaintiffs in these cases have no prospect of achieving
any financial gain from the litigation. None of the defendants had significant
financial resources. Lidsky argues that the plaintiffs’ motive was to silence their
annoying critics by litigation and the threat of litigation, to the detriment of
robust debate over a new mode of communications that offers some measure
of parity to the John Does of this world. She proposes a generous application
of the concept of opinion as a means of avoiding this stifling effect, treating
extravagant charges as nonactionable rhetorical hyperbole.
Certainly, opinion should be afforded a wide range. The courts regularly
exempt rhetorical hyperbole from defamation liability (see Chapter 17). Fur-
ther, the courts should take pains to ensure that truthful grievances are not
squelched (as seems to be U-Haul’s purpose in the Osborne case). But deroga-
tory statements with a concrete factual core—such as nonrhetorical charges of
criminality—should be actionable if they are false and are made with the requi-
site degree of fault (actual malice or negligence as the case may be). Persons like
Leslie Scrushy should not be compelled to acquiesce in false charges of sexual
misconduct. She was not a public figure, and the charges against her had no
relation to any public issue or to the activities of any public figure. The libel
against her was “purely private” (see Chapter 14). The charge that Mr. Scrushy
and his company had bilked Medicaid and the charge that Hitsgalore and its
officers had lied to the SEC and had engaged in various types of securities fraud
are protected by the actual malice rule. Both accusations implicated the effec-
tiveness of government operations (see the discussions in Chapters 10, 11, and
13). U-Haul may or may not have been a public figure; the status of business
firms not involved in criticisms of government operations is unresolved (see
Chapter 13). But Osborne and Woodrum are protected as long as they tell the
truth about their unhappy experiences (of which they had firsthand knowledge). At
worst, they could be held liable only if negligence were shown (see Chapter 13).
Professor Lidsky properly seeks to prevent the targets of public criticism
from stifling their critics. But that objective has no special relation to the Internet.
All opinions, as well as all factual statements made without the requisite culpability,
should be and are protected against meritless and intimidating litigation by the
targets of criticism. That is the mission of New York Times Co. v. Sullivan and
Gertz and the rules insulating nonactionable opinion. There is no basis for
providing an extra layer of protection for Internet speech.
Even so, serious practical problems arise when the victim of a defamatory
falsehood made on the Internet seeks to reach the source of that defamation.
First, problems of identification may exist—as in Zeran—if the service pro-
vider is unable or unwilling to name an anonymous defamer (the culpable infor-
mation content provider). Courts have given great weight to protecting the
First Amendment claims of anonymous users of the Internet, fearing a chilling
effect on their freedom of expression and freedom of association in the event
they are unmasked. But the claim of anonymity is not absolute. Identification
will be required if the victim can establish that he has a viable defamation claim
and that identification of the defamer is essential to his assertion of that claim.17
Second, problems surface in selecting the appropriate forum in which to
litigate claims of defamation based on information transmitted nationally (and
internationally) over the Internet. In general, courts have been unwilling to
allow the aggrieved party to sue in any one of the many jurisdictions reached by
the Internet—a choice that may place undue burdens on defendants. Additional
contacts must be shown linking a particular defendant to a particular forum.18
In the Osborne case, for example, U-Haul sued Osborne and Woodrum, resi-
dents of Georgia, in a court in Arizona—a highly inconvenient forum for the
defendants. The suit was dismissed. There were no contacts with Arizona other
than the accessibility of the Internet in that state. Osborne reflects the prevailing
view.
PRIVACY
False light privacy poses no problems distinct from defamation. Whatever the
solutions devised for defamations on the Internet, they should apply to false
light privacy as well.
The problem of intrusion on private domains raises some distinctive prob-
lems. The solutions devised to date tend to parallel those applicable in
noncomputer contexts. Three major federal statutes are applicable to computer
privacy. The first of these, the Wiretap Act, is the same statute that applies to
telephone and electronic communications generally. It has been amended to
apply to computer traffic.19 But the act retains the exception applicable to tele-
phone conversations. As long as no purpose exists to commit a crime or a tort,
interceptions and recordings are lawful if made with the consent of one of the
parties to the conversation or communication at issue.20
Two other statutes—the Stored Communications Act21 and the Computer

Fraud and Abuse Act22—deal with information stored on computers. Neither
is wholly satisfactory. The first is worded in such a way that it may not apply to
information stored on an individual’s personal computer.23 The second en-
compasses personal computers but requires that the victim sustain $5,000
in economic damages before being afforded a remedy.24 Both statutes provide
immunity to intrusions made with the consent of an authorized user of the site
in question.25
Most litigation to date has involved the use of “cookies,” digital signals
transmitted by commercial sites to those who access their sites; the cookies in
turn provide the commercial site operator with information as to the identity of
persons accessing the site and the timing, frequency, and nature of their perus-
als. The courts have rejected claims of invasion of privacy asserted by individu-
als complaining of the use of cookies: the Wiretap Act is not violated because
the commercial site is a consenting party to the communication; the other
statutes are not violated because of the limitations on their scope (noted earlier)
and because the commercial sites are authorized users of the information trans-
mitted back to them by the cookies implanted in individuals’ computers.26
This is not to say that the statutes are useless. They are probably effective in
dealing with third-party hackers. And wholly apart from the statutes, any inten-
tional interception of a computer message or deliberate penetration of a com-
puter user’s stored data by a third party would provide a basis for a common law
action for intrusion on private affairs. Such intrusions are clearly “offensive to
a reasonable person.”27
T H E M O S T S E R I O U S D I F F I C U L T Y P O S E D B Y T H E I N T E R N E T arises in connec-
tion with public disclosure of private facts. The validity of such a claim depends
on facts being “private.” If a hacker or other intruder gains access to personal
information about a person (for example, medical records, financial data, mari-
tal arrangements) and publishes that information on the Internet, the informa-
tion is no longer private, and no remedy is available thereafter—at least not
under existing law—to those who further publicize the wrongfully disclosed
private facts. (The original hacker, if identifiable, can be pursued for both the
intrusion and the initial disclosure, but that action may afford only limited
redress.) Even if the Supreme Court’s decision in Bartnicki (discussed in Chap-
ter 34) were to be overturned or narrowed, it is difficult to see how, as a
practical matter, the spread of the previously private information, once released
over the Internet, can thereafter be circumscribed. Strengthening the law against
intrusion may help, but the Internet may well sound the death knell for the
already beleaguered action for public disclosure of private facts (see Chapters
28 and 29). As yet, almost no discussion in the cases or in the literature has
addressed this aspect of privacy in the context of the Internet.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The Internet offers unparalleled opportunities to inflict emotional distress on
others. No doubt the bogus advertisement in Zeran—linked to the Oklahoma
City bombing—was defamatory. But almost certainly the main impact was the
emotional distress inflicted on Zeran. After twenty-plus days of utter chaos, the
situation improved to the point where Zeran was receiving only fifteen abusive
telephone calls per day. Yet Zeran could not sue AOL for intentional infliction
of emotional distress, just as he could not sue for defamation, because of the
bar of the Communications Decency Act.28
A different kind of problem was posed in United States v. Alkhabaz.29
Alkhabaz, who published on the Internet under the pseudonym “Jake Baker,”
was a student at the University of Michigan. On January 9, 1995, he posted a
story on the bulletin board alt.sex.stories describing in chilling detail the beating,
rape, torture, and killing of a coed. The story was realistic in its callous dialogue
and in the actions taken at the expense of the unfortunate victim—who was
given the name of one of Alkhabaz’s Michigan classmates.30 When university
officials learned of the story, they summoned the police. They also notified the
female classmate (given the pseudonym “Jane Doe” in the judicial opinions).
Following notification, Jane Doe “appeared to be controlling herself with great
difficulty”; psychological counseling was recommended.31 Alkhabaz was impris-
oned for twenty-nine days and released only after psychologists concluded that
he was not a threat to others.
The government chose not to prosecute Alkhabaz for the Jane Doe story
and concentrated on certain e-mails between Alkhabaz and an unknown Cana-
dian correspondent. The government contended that they constituted criminal
threats. The court of appeals, in a badly muddled opinion, rejected the government’s
ill-conceived theory that the e-mails constituted threats to young girls in the
Ann Arbor area. Prior to the police investigation, no one had seen the e-mails
other than Alkhabaz and his Canadian partner. By contrast, the Jane Doe story
was published on the Internet, and given the identification of Jane Doe in the
story, it was inevitable that she would learn of the story and become frightened
and disturbed. The story was the real threat and should have been the basis for
the government’s prosecution for the crime of uttering threats. Jane Doe never
sued Alkhabaz, but she would have had a strong case for intentional infliction of
emotional distress: the story was an extreme departure from accepted social
norms given its content and its identification of Jane Doe as the purported
victim. It was published in a domain open to all web surfers. And it could be
foreseen that Jane Doe would become aware of the story and be severely shaken
by it. At the very least, Alkhabaz had acted recklessly, in utter disregard for Jane
Doe’s mental tranquility.
The Zeran litigation is similar to the Vaill case discussed in Chapter 16 (the
spurious newspaper ad seeking a sexual partner). The Alkhabaz case is similar
to the trio of cases discussed in Chapter 36 in which authors used identifiable
names or personalities and imputed degrading and immoral actions to them
(Geisler, Springer, and Polakoff ). But the harm inflicted in Zeran and Alkhabaz
was of far greater magnitude, facilitated by the enormous reach of the Internet.
The use of the Internet to target specific individuals, as in Zeran and Alkhabaz,
is not entitled to First Amendment protection. Neither the bogus advertise-
ment directed at Zeran nor the identification of Jane Doe as the victim of a
frightful attack served any of the values protected by the concept of freedom of
expression. The same is true of countless other instances in which the Internet,
through postings or e-mails, is used to harass or threaten particular individuals.
Such conduct—whether accomplished by face-to-face utterances, written mes-
sages, telephone calls, or computer communications—is subject to criminal
sanctions against threats, harassment, and stalking. A solid basis also exists for
an action for intentional infliction of emotional distress by any victim of such
offensive utterances.
T H E A N A LY S I S B E C O M E S M O R E C O M P L I C AT E D when the allegedly harassing or

threatening behavior is linked to a debate on an issue of public concern.
Beginning in the early 1990s, the American Coalition of Life Activists
(ACLA), an antiabortion organization, began circulating “WANTED” and “un-
WANTED” posters identifying physicians who performed abortions. The posters
provided information about the doctors, including photographs and the ad-
dresses of their homes and offices. (ACLA was later joined by the Advocates for
Life Ministries [ALM], which engaged in the same activities.) On March 10,
1993, Dr. David Gunn, one of the doctors identified in the posters, was mur-
dered. On August 21, 1993, Dr. George Patterson, another physician desig-
nated in the posters, was assassinated. And in July 1994, after being identified
in a wanted poster, Dr. John Bayard Britton was murdered. ALM defended the
murders as justifiable homicide in court filings and in more general publica-
tions and openly advocated the use of force to oppose the delivery of abortion
services. This litigation, entitled Planned Parenthood v. American Coalition of

Life Activists,32 is concerned with three subsequent publications.
On January 25, 1995, ACLA presented a “Deadly Dozen” poster at a press
conference. The poster identified thirteen doctors who performed abortions. It
provided personal information, such as place of residence, about some of the
doctors including Drs. James Newhall, Elizabeth Newhall, and Warren Hern.
The poster bore the caption “GUILTY” and, in slightly smaller letters, “OF CRIMES
AGAINST HUMANITY.” At the bottom was the legend “ABORTIONIST.” The day after
the poster was released, the Federal Bureau of Investigation (FBI) notified the
doctors of the poster and offered protection. The FBI advised the doctors to
wear bulletproof vests and to take other security precautions, which they did. In
August 1995, ACLA released additional posters, including one identifying Dr.
Robert Crist, in a format similar to the Deadly Dozen poster; it also gave
Crist’s home address.
Finally, in January 1996, ACLA unveiled its “Nuremberg Files” and for the
first time posted its handiwork on the Internet. Approximately 200 people were
listed under the label “ABORTIONISTS: the shooters”; and 200 more were listed
under files for judges, politicians, law enforcement personnel, spouses, and
abortion-rights supporters. Crist, Hern, and the Newhalls were listed in the
abortionists section, which bore the legend “Black font (working); Greyed-out
Name (wounded); Strikethrough (fatality).” The names of the murdered doc-
tors—Gunn, Patterson, and Britton—were struck through.
Doctors Crist, Hern, and the two Newhalls—joined by two health clinics
that provided medical services to women (including abortions)—sued under a
federal statute, the Freedom of Access to Clinic Entrances Act (FACE). Plain-
tiffs claimed they had been and were now being targeted by threats from ACLA,
ALM, and numerous individuals working with those organizations. FACE gives
aggrieved persons a right of action against whoever by “threat of force . . .
intentionally . . . intimidates . . . any person because that person is or has been
. . . providing reproductive health services.”33 The two clinics claimed to have
been aggrieved because some of their physicians were included in one or more
of the three postings at issue.
In ruling for the plaintiffs, the court of appeals observed that by 1995 the
defendants knew the effect the “WANTED,” “unWANTED,” and “GUILTY” posters
had on the doctors named in them—to wit, it terrorized them, causing many to
cease providing abortions. All of the individual plaintiffs testified that after
having been named in the posters, they feared for their lives. The court held
that in these circumstances defendants’ actions constituted actionable threats.
The test is “whether a reasonable person would foresee that the statement would
be interpreted by those to whom the maker communicates the statement as a

serious expression of intent to harm or assault.”34 Further, it was not necessary
that the defendants intended or were able to carry out the threat. The only
requirement for a “true threat” was that defendant intentionally communicate a
threat under circumstances satisfying the quoted test.35 FACE required an in-
tent to intimidate; that intent had been shown in this case. The threat, made
with requisite intent, insulated the statute from attack under the First Amend-
ment. The court concluded that the Crist and Deadly Dozen posters
are not just a political statement. Even if the Gunn poster, which was the first
“WANTED” poster, was a purely political message when originally issued, and even if
the Britton poster were too, by the time of the Crist poster, the poster format itself
had acquired currency as a death threat. Gunn was killed after his poster was
released [as were Britton and Patterson]. Knowing this, and knowing the fear
generated among those in the reproductive health services community who were
singled out for identification on a “wanted”-type poster, ACLA deliberately
identified Crist on a “GUILTY” poster and intentionally put the names of Hern and
the Newhalls on the Deadly Dozen “GUILTY” poster to intimidate them. This goes
well beyond the political message (whatever one thinks of it) that abortionists are
killers who deserve death too.36
The court regarded the Nuremberg Files as different. They included hun-
dreds of names, and the avowed purpose was to collect “dossiers on abortionists
in anticipation that one day we may be able to hold them on trial for crimes
against humanity.”37 This message, however provocative and offensive, was pro-
tected by the First Amendment. But the files went further by listing Crist,
Hern, and the Newhalls in the ranks of abortionists. Further, the names of
abortionists “who have been murdered because of their activities are lined
through in black, while names of those who have been wounded are highlighted
in grey.” As a result, the “listing of Crist, Hern and the Newhalls on both the
Nuremberg Files and the GUILTY posters [cannot be said to be] purely political
expressions” (emphasis in original).38 The court concluded: “Violence is not a
protected value. Nor is a true threat of violence with intent to intimidate” (em-
phasis in original).39
The jury awarded a total of $12.4 million in compensatory damages. The
trial judge entered an order permanently enjoining the defendants from threat-
ening any of the plaintiffs, from publishing or distributing the Deadly Dozen or
Crist posters, from providing additional information concerning plaintiffs to
the Nuremberg Files or any similar website, and from distributing the person-
ally identifying information about the plaintiffs in the files—if any of these
activities were pursued by the defendants with a specific intent to threaten the
plaintiffs. The court of appeals affirmed. (A substantial punitive damage award

was vacated on procedural grounds and remanded for further consideration at
the trial level.)
Several judges dissented from the decision in favor of the plaintiffs. Three
of the points these judges made lack substance. Two opinions emphasized that
the alleged threats were made in a public forum.40 But if a threat is a true threat,
it is immaterial when and where it is communicated. That point is settled by
numerous prior decisions cited and discussed in the majority opinion. One
dissenting opinion claimed the evidence in this case failed to show an un-
equivocal threat and failed to show one made with the requisite intent.41 The
facts detailed by the majority opinion, not seriously disputed, effectively rebut
these objections. The only point of substance was made by Judge Kozinsky. He
conceded that a defendant would be liable if he said, “If you don’t stop perform-
ing abortions I’ll kill you.”42 But Kozinsky insisted that to be an actionable
threat, the threatened violence must originate with the speaker or someone
acting in concert with the speaker. (There was in fact some evidence of con-
certed action in this case, but Judge Kozinsky discounted that evidence.) To
rephrase Kozinsky’s quotation in light of the position he takes, it is perfectly all
right in Judge Kozinsky’s view to say, “If you don’t stop performing abortions,
one of our antiabortion fanatics will kill you.” That sounds like a threat. But
perhaps it should be viewed as an incitement to the antiabortion fanatics to get
on with their murderous rampage. Does it make a difference?
Brandenberg, discussed in Chapter 15, permits the punishing of incite-
ments only where “such advocacy is directed to inciting or producing imminent
lawless action and is likely to produce such action.”43 Can that test be met here?
The prior posters had in fact led to three murders. The threat posed by the new
posters had led the FBI to notify the named doctors promptly and to offer
protection forthwith. The targeted doctors had acquired bulletproof vests and
adopted other security precautions. The Internet provides instantaneous national
and international communication. Should the parties promulgating incitements
on such a medium be permitted to argue that their conduct is permissible
because it may take a little while for the gun-toting fanatics to find an appropri-
ate opportunity to shoot the targeted doctors? A commitment to the First Amend-
ment should not be carried to the point of inaction in the face of very real
threats of violence.
Although Planned Parenthood was premised on a statutory violation, all of
the elements of intentional infliction of emotional distress were proved: inten-
tional conduct, extreme and outrageous in character, inflicting serious emo-
tional distress (see the discussions in Chapters 15, 17, and 36).44
A year after the decision in Planned Parenthood the Supreme Court passed
on the constitutionality of a Virginia law prohibiting threats and intimidation.
The statute at issue in Virginia v. Black45 made it unlawful for any person, “with
the intent of intimidating any person or group of persons, to burn . . . a cross
on the property of another, a highway or other public place.” Among those
prosecuted for violating the statute were Richard Elliott and Jonathan O’Mara.
They were angry with James Jubilee, an African American, and burned a cross
on his property. Jubilee did not discover the partially burned cross until the
following morning. But it made him “very nervous” because he did not know
what would happen next: “[A] cross burned in your yard . . . tells you that it’s
just the first round.”46 O’Mara pleaded guilty, and a jury found that Elliott was
guilty. Each was fined and sentenced to ninety days in jail.
On appeal, the Supreme Court vacated the convictions and remanded for
further proceedings to resolve procedural problems. The Court divided on a
number of issues, but a majority sustained the constitutionality of the quoted
statutory provision, observing that the First Amendment permits a state to ban
true threats.
“True threats” encompass those statements where the speaker means to communi-
cate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals. . . . The speaker need not actually
intend to carry out the threat. Rather, a prohibition on true threats “protects
individuals from the fear of violence” and “from the disruption that fear engen-
ders,” in addition to protecting people “from the possibility that threatened
violence will occur.” . . . Intimidation . . . is a type of true threat, where a speaker
directs as threat to a person or group of persons with the intent of placing the
victim in fear of bodily harm and death. [Elliott and O’Mara] do not contest that
some cross burnings fit within this meaning of intimidating speech. . . . Virginia’s
statute does not run afoul of the First Amendment insofar as it bans cross burning
with intent to intimidate.47
None of the concurring or dissenting opinions disagreed with the majority’s

position that threats and intimidation are not protected by the First Amend-
ment.48 The Court was unanimous in upholding this principle. Expressions of
this character, made over the Internet or otherwise, may be subjected to both
civil and criminal sanctions.
CONCLUSION
The advent of the Internet is not likely to change the substantive standards
applicable to defamation, privacy, and intentional infliction of emotional dis-
tress. But the Internet has some significant impacts.
On defamation, Professor Lidsky’s arguments may bear some fruit. Courts

may be more willing to find nonactionable rhetorical hyperbole in the context
of Internet chat rooms and bulletin boards than in other, more conventional
settings.49 But the more crucial problem in responding to defamatory attacks
may turn on the ability to identify the actual defamers in view of the broad
immunity afforded to service providers (like AOL) by the Communications
Decency Act.
Protection of privacy may require more sharply focused legislative mea-
sures to deal with intrusions. On this front the problem may be technological:
countering the technical ingenuity of hackers. On public disclosure of private
facts, the Internet may administer the last lethal dose.
Opportunities for infliction of emotional distress are enhanced by the
Internet: by the instantaneous nature of transmissions, their broad territorial
sweep, the tempting prospect of anonymity, and the vividness with which mes-
sages and images can be transmitted. No new doctrinal developments are nec-
essary or anticipated—with one exception. The danger posed by “incitements”
of the type in the Planned Parenthood case may require a reexamination of the
parameters of the Brandenberg test for actionable incitements. Of significance
is the potential immediacy of harm, coupled with possible delays in the inflic-
tion of harm, posed by Internet incitements.
T H I R T Y - E I G H T
CONCLUDING OBSERVATIONS
I N S E E K I N G T O R E C O N C I L E T H E C O N F L I C T I N G I N T E R E S T S of reputation, pri-
vacy, and free expression, the courts have constructed a complex edifice. One
way to gain an understanding of the totality of the legal regime is to examine the
courts’ approach to five types of statements: deliberate fabrications, negligent
misstatements, innocent misrepresentations, true statements of fact, and ex-
pressions of opinion.
DELIBERATE FABRICATIONS
If a statement is uttered with knowledge of its falsity or with reckless disregard
of whether it is true, the spokesperson faces severe sanctions on several fronts.
If the statement is about an identifiable person and it impairs that person’s
reputation by holding him up to public hatred, contempt, or ridicule, the spokes-
person can be sued for defamation. Since deliberate fabrication constitutes
actual malice, the speaker can be held liable for actual, presumed, and punitive
damages. Constitutional privilege is unavailable, as are most privileges based
on state law. (In the case of oral statements not constituting slander per se,
plaintiff may have to show “special damages.”)
The speaker also may be held liable for product disparagement (if the state-
ment involves a derogatory comment about a product rather than a person), for
interference with contractual or business relations (if the speaker is aware of the
contract or business relation and employs the falsehood to intentionally inflict
harm), and for intentional infliction of emotional distress (if the falsehood in-
flicts emotional distress and that distress is both anticipated and severe).
306 C O N C L U D I N G O B S E R VAT I O N S
Even if the falsehood does not impair the subject’s reputation, the victim
may have a claim for false light invasion of privacy if the falsehood would be
highly offensive to a reasonable person. Furthermore, other claims for violation
of privacy—such as unwarranted disclosures of true facts—may be strength-
ened if the true facts are fictionalized in any way.
In each of these cases, liability does not turn on the plaintiff ’s status as
public official, public figure, or private person. With the exception of oral
statements not amounting to slander per se, the status of the defendant—media
or nonmedia—is also irrelevant. (Defamations originating with the media are
always classified as libel, not slander.)
Calculated falsehoods have no redeeming social value. To be sure, the Su-
preme Court observed in New York Times Co. v. Sullivan that even a false state-
ment may make a valuable contribution to public debate by bringing about “a
clearer perception and livelier impression of truth, produced by its collision
with error.”1 But it is apparent from the context that the Court was referring to
inadvertent errors, observing that “erroneous statement is inevitable in a free
debate.”2 Inadvertent errors are abundant in both public debates and private
dialogues; there is no need to augment their number by affording immunity to
falsehoods shown by clear and convincing evidence to have been uttered with a
knowledge of their falsity or with reckless disregard of whether they are true or
false. The Court returned to the issue in Garrison (Chapter 2), where it ob-
served that “the use of the known lie” is not deserving of special protection
because it is “at odds with the premises of democratic government and with the
orderly manner in which economic, social or political change is to be effected.”3
NEGLIGENT MISSTATEMENTS
In the case of negligent misstatements, the law affords complete immunity as
long as the target of the misstatement is a public official or a public figure and
the misstatement is germane to that person’s public role. No action may be
brought in defamation, false light privacy, product disparagement, interference
with contract or business relations, or intentional infliction of emotional dis-
tress. The nature of the action is irrelevant if its success depends on proving the
falsity of an allegation about a public official or a public figure, if the allegation
is germane to that person’s public role, and if actual malice has not been proved.
But negligence does afford a basis for recovery of actual damages in cases
of defamation or product disparagement if the statement, although germane to
an issue of public concern, impairs the reputation of a private person or of that
person’s business or products. In addition, a private person could probably
bring a claim for false light invasion of privacy if the falsehood would be highly
C O N C L U D I N G O B S E R VAT I O N S 307
offensive to a reasonable person (as discussed in more detail in Chapter 21).

Actions for interference with contract or business relations or for infliction of
emotional distress would not normally be available, even to private persons,
absent evidence of wrongful intent—an outcome dictated by state law, not con-
stitutional doctrine.
Obviously, the rights of a private person are dramatically different from
those of a public official or a public figure if negligence can be proved, but not
actual malice.
As noted at several points in this book (for example, Chapters 13, 21, and
35), negligence is a treacherous ground on which to premise liability for defa-
mation and related claims. If applied too narrowly, private parties are exposed
to groundless defamatory utterances for which they have no meaningful redress.
If applied too broadly, media and private spokespersons may be inhibited from
reporting fully and freely on highly significant shortcomings originating in the
private sector (for example, physician malpractice, contaminated food prod-
ucts, environmental violations). For this reason and because of the problems
that arise in connection with proof of actual malice (see Chapter 22), a proposal
has been made to respond to complaints charging defamation by using proce-
dures only marginally concerned with the award of damages. The emphasis is
on affording a means of redress to the defamed persons or businesses, enabling
them to right the wrong through corrections or retractions and, failing these, to
concentrate on adjudicating the truth or falsity of the alleged defamatory state-
ment rather than on the state of mind—intent, recklessness, or negligence—
with which the statement was made (see Chapters 23–25).
INNOCENT MISREPRESENTATIONS
Innocent misrepresentations are not actionable under any theory if uttered dur-
ing a discussion of an issue of public concern. But where the statements do not
pertain to a public person or a public issue, the possibility of substantial liability
looms. Although the law on this issue is still developing, the Supreme Court
decision in Dun & Bradstreet (Chapter 14) seems to authorize the imposition of
liability in cases under this heading where a defamatory utterance—however
innocently made—impairs another’s reputation. In these cases state law privi-
leges may be important in providing some protection to statements made to a
limited audience in good faith to advance a legitimate economic objective (credit
reports, job recommendations, and the like). But mere gossipmongering gains
no protection under state or federal law.
False light privacy actions may be available under similar circumstances. If
a falsehood not made during a discussion of a public person or an issue of
public concern would be highly offensive to a reasonable person, it may be

actionable even if it is the product of an innocent mistake (see Chapter 21).
Needless to say, if either state or federal law rejects strict liability for state-
ments unrelated to a public issue, such statements could be challenged—along
the lines suggested under the previous heading—if negligence can be shown.
TRUE STATEMENTS OF FACT

True statements gain a high measure of protection under the law. But they are
vulnerable under two circumstances.
1. A disclosure is actionable if it relates to a matter concerning another’s private life,
the matter publicized is of a kind that would be highly offensive to a reasonable
person, and the information is not of legitimate concern to the public. The
types of disclosures that trigger liability under this heading usually encompass
intimate sexual matters, confidential relations between husband and wife,
medical information, private nudity, confidential financial information,
embarrassing revelations about children, records of academic performance, and
religious and related sentiments of private persons. But the courts are alert to the
public’s need to be informed, and they will protect disclosures whenever public
interests are at stake. In some instances, such as disclosure of the identity of rape
victims, the courts appear to protect harmful disclosures not germane to any
public issue (see Chapter 29).
2. Where information is derived from an intrusion—physical or otherwise—

upon the seclusion of another or his private affairs or concerns, the intrusion is
actionable if it would be highly offensive to a reasonable person. This violation
of privacy is complete when the intrusion occurs—the trespass, wiretapping, or
electronic eavesdropping—regardless of whether any private information is
ascertained or disclosed. But in almost all cases disclosure of the information
illicitly obtained exacerbates the harm. Unless sanctions are imposed on the
disclosure—for example, publicizing the contents of illegal wiretaps—the law
does not accomplish its objective of protecting persons against these types of
invasions of privacy. The law on this last point is still evolving (see Chapter
34).
The law also appears lax in affording almost no protection to persons pho-
tographed from public vantage points. A person should not have to remain a
prisoner in his own premises, behind high hedges and drawn curtains, to be
free from photographic intrusion while pursuing the normal activities of every-
day life (see Chapters 30 and 31).
Violations of this aspect of the law of privacy frequently give rise to other
causes of action, such as intentional infliction of emotional distress and—de-
pending on the illicit means employed—to actions for trespass, fraud, and wire-
tapping. Actions for this type of invasion of privacy do not turn on whether the
victim is a public or a private person.
EXPRESSIONS OF OPINION
Expressions of opinion are never actionable on a theory of defamation (unless
the opinion implies a statement of fact that is both false and defamatory). More
important, expressions of opinion are not actionable on any other theory—
including intentional infliction of emotional distress—if the target of the opin-
ion is a public official or a public figure. However cruel or coarse, an adverse
opinion about a public person is immune from attack.
Adverse opinions about private persons, including caricatures and fictional
representations, cannot be challenged on grounds of defamation if the typical
reader would not take the statement as a factual representation of the target of
the derogatory expression. But there is support for the view that extreme af-
fronts to private persons will support claims for intentional infliction of emo-
tional distress and possibly for invasion of privacy. This branch of the law is not
fully developed at this time. Future decisions may take a different or a more
expansive course, particularly on such questions as ridicule by pornography
(see Chapter 17), hate speech (see Chapters 15 and 37), and incorporation of
the identities of private persons in degrading fictitious portrayals (see Chapters
36 and 37).
M A N Y T H O U G H T F U L P E R S O N S —including journalists, lawyers, scholars, and

others active in a variety of political and intellectual activities—have devoted
their energies and in some cases their professional careers to furthering the
causes of free speech and free press guaranteed by the First Amendment. They
view the existing legal edifice with great skepticism. Even though the main
parameters follow existing law or are plausible extrapolations from that law,
First Amendment enthusiasts give ground grudgingly. To them, every incursion
on freedom of expression is a threat to the Republic and to the free society to
which we aspire.
Their position, however, is grounded in ideology—a quasi-religious fer-
vor—rather than in the hard facts of everyday life. As demonstrated time and
again in the real-world cases set forth in this volume, untrammeled expression
can inflict palpable harm. To be sure, most of the harm is intangible—“mere
emotional distress” in the eyes of First Amendment advocates—but that does
not detract from the reality of the harm. Concededly, those who live in a free
society—or in any society, for that matter—cannot expect to live in a cocoon
protected against all emotional disturbances. That is especially the case in a

society such as the United States comprising diverse antagonistic factions, each
with its own agenda and ideology. But there is a critical difference between
emotional disturbances that are an unavoidable aspect of life in a free society
and harms inflicted for no reason having any relationship to the accepted objec-
tives of organized communal living.
An example may illustrate the point. A child is abducted on the way to
school; his inert body is later discovered wrapped in a plastic bag in a dumpster.
The story receives extensive attention in the press. No doubt the child’s parents
are devastated by their loss. Their grief is hardly assuaged by the publicity
surrounding the event: the manner of abduction; the cause of death; the pres-
ence or absence of sexual violation, torture, or mutilation; the search for the
offender; cautionary messages from the authorities on how to avoid similar
crimes in the future. The unhappy incident may provide the basis for magazine
articles, a book or movie or television program, and in this day and age a
rapper song, an MTV video, or an Internet chat-room discussion. All of these
may be expected to contribute to the agonies of the bereft parents as the por-
trayals are brought to their attention. Other friends and relatives of the deceased
child also may suffer emotional distress of varying severity, as may parents of
other children exposed to similar dangers.
But all of this distress must be borne by the parents and others. It is the
price they pay for living in a free society. The child’s abduction and death are
clearly matters of public concern, as are police efforts to apprehend the of-
fender. The public has a right to know about such events to ensure appropriate
responses by government authorities, to provide the basis for remedial legisla-
tion if needed, and to adopt such personal measures as they think appropriate
to avoid repetitions of similar outrages. The First Amendment properly pro-
tects all of the speech here at issue. Any attempt to draw boundaries to protect
the bereft parents or to ensure good taste or social propriety would run afoul of
enormous practical impediments. In most cases it is impossible to tell where
useful illumination ends and heartless exploitation begins.
The incident, however, could be the source of a different kind of mischief.
Suppose a proponent of close family ties believes mothers should escort their
children to and from school. That person takes pictures of unescorted children,
ascertains their addresses by observing their departure in the morning or their
return in the afternoon, and mails their parents a photograph of the children
along with the most gruesome press clippings describing the initial child abduc-
tion and a note that says “Take care!” The same information could be conveyed
to targeted parents over the Internet. Is such conduct protected by the First
Amendment? The answer is almost certainly no. Apart from possible criminal
sanctions for stalking the children or for menacing the parents, the parents
could sue for invasion of privacy (intermeddling in their private affairs) and for
intentional infliction of emotional distress (since serious emotional distress is
the almost certain outcome of the activist’s campaign).
Parents must bear the unavoidable anxieties associated with having chil-
dren, including any fears prompted by general publicity associated with the
initial child abduction covered by the press. But there are limits. Penalizing
direct and personalized mailings of the type here described does not threaten
any of the important expressive values sought to be advanced by the First Amend-
ment: neither government action nor possible remedial legislation is at issue,
no new information is embodied in the mailings that might contribute to the
ascertainment of truth, and the activist’s ability to propagate his views on public
policy are not impaired in any important way. He remains free to disseminate
his views in the media, in pamphlets, or over the Internet as long as particular
children and their parents are not singled out for individualized attention that
most would regard as threatening and that almost certainly would inflict serious
psychic harm.
The distinctions set forth in this volume and summarized in this chapter—
describing the scope of actions for defamation, privacy, and emotional dis-
tress—reflect a systematic embodiment of the distinctions suggested in the
hypothetical child abduction case. The First Amendment is important. But
there are instances in which it must yield and does yield to other social con-
cerns such as the prevention of gratuitous inflictions of pain.
In sum, no free society can survive without affording a wide measure of
protection to freedom of expression. But no sane society can survive without
protecting individuals from avoidable harm—whether the harm be physical,
economic, or psychic.
NOTES 313
NOTES
TABLE OF ABBREVIATIONS FOR CITATIONS TO LEGAL MATERIALS

A. or Atl. Atlantic Reporter (West Publishing)
A.2d Atlantic Reporter, Second Series (West)
A.C. Law Reports, Appeal Cases (England)
Cal. Rptr. California Reporter (West)
Cal. Rptr.2d California Reporter, Second Series (West)
De G. & Sm. De Gex & Smale (England)
Eng. Rep. English Reports, Full Reprint (England)
F. or Fed. Federal Reporter (West)
F.2d Federal Reporter, Second Series (West)
F.3d Federal Reporter, Third Series (West)
F.R.D. Federal Rules Decisions (West)
F.Supp. Federal Supplement (West)
F.Supp.2d Federal Supplement, Second Series (West)
K.B. Law Reports, King’s Bench (England)
L.Ed. United States Supreme Court Reports, Lawyers Edition (Lexis Publishing)
L.Ed.2d United States Supreme Court Reports, Lawyers Edition, Second Series (Lexis)
Lexis A computer service (see “Computer Access” below)
Mach. & G. Macnaghten & Gordon (England)
Media L.Rep. Media Law Reports (Bureau of National Affairs) (BNA)
N.E. North Eastern Reporter (West)
N.E.2d North Eastern Reporter, Second Series (West)
N.W. North Western Reporter (West)
N.W.2d North Western Reporter, Second Series (West)
N.Y.S. or New York Supplement (West)
N.Y.Supp.
N.Y.S.2d New York Supplement, Second Series (West)
P. or Pac. Pacific Reporter (West)
P.2d Pacific Reporter, Second Series (West)
P.3d Pacific Reporter, Third Series (West)
Q.B. Law Reports, Queen’s Bench (England)
S.C.R. Canada Supreme Court Reports (Canada)
S.Ct. Supreme Court Reporter (West)
S.E. South Eastern Reporter (West)
S.E.2d South Eastern Reporter, Second Series (West)
So. Southern Reporter (West)
So.2d Southern Reporter, Second Series (West)
S.W. South Western Reporter (West)
314 NOTES
S.W.2d South Western Reporter, Second Series (West)

S.W.3d South Western Reporter, Third Series (West)
T.L.R. The Times Law Reports (England)
U.S. United States Reports (Government Printing Office) [for alternate sources of
U.S. cases, see L.Ed., L.Ed.2d, and S.Ct., supra]
U.S.C. United States Code (Government Printing Office)
U.S.C.A. United States Code Annotated (West) [an alternative to U.S.C.]
U.S.L.W. United States Law Week (BNA)
LIBRARY ACCESS
Most university law libraries are accessible to the general public (although a special pass
from the librarian may be required). Except for the foreign reports and possibly the BNA
reports, the sources listed previously are usually part of the library’s “core collection” available
on open shelves.
COMPUTER ACCESS
I use Lexis/Nexis. Except for foreign and BNA citations, access to cited cases can be
obtained by typing in the citation in the form given in the footnotes—e.g., “376 U.S. 254.” A
few cases are available only on Lexis/Nexis. Type in the citation given in the footnote—e.g.,
“2001 U.S. App. Lexis 27798.”
A COMMENT ON CASE NAMES

A case reported as Dooling v. Howell usually means someone named Dooling is suing
someone named Howell. But there are exceptions. If Howell loses at the trial level, he may
appeal and the case may then be reported as Howell v. Dooling even though there has been no
change in the underlying facts. A similar inversion may occur if at the trial level Howell asserts
a counterclaim against Dooling and that is the claim warranting discussion. The case name is
still Dooling v. Howell even though the discussion focuses on the claim asserted by Howell.
Case names may also be a source of confusion because of the substitution of parties. Thus
a case reported as Dooling v. Howell may have nothing to do with the conduct of either Dooling
or Howell. Dooling may be the guardian of a minor, Thompson, the injured party; and Howell
may be the trustee in bankruptcy of Barney, the person said to have caused Thompson’s injury.
Variations may occur for other reasons. The names of cases are important for purposes of
identification. But they may be misleading in describing the configuration of the real parties in
interest.
CHAPTER ONE
1. Rety v. Green, 546 So.2d 410, 413–14 (Fla. App.), review denied, 553 So.2d 1165 (Fla.
1989).
2. Id. at 414.
3. Id. at 415.
4. Id. at 415–16.
5. Id. at 416–17.
6. Id. at 417.
7. Id. at 417–22.
8. Faulk v. Aware, Inc., 244 N.Y.S.2d 259, 260–61 (App. Div. 1963), aff ’d, 200 N.E.2d 778
(N.Y. 1964), cert. denied, 380 U.S. 916 (1965).
9. 244 N.Y.S.2d at 262.
NOTES 315
10. Id. at 265–67.

11. See Faulk (1983) describing his experiences and the impact of blacklisting on other
entertainers.
12. On the McCarthy years, see Fried (1976, 1990); Oshinsky (1983); Reeves (1997).
13. See Jones (1994) at 565–69; McAdams (1996) at 2238–46. See also Post (1986) at
693–721; Zimmerman (1983) at 326–37.
14. U.S. Dept. of Commerce, Statistical Abstract of the United States, 1998, Tables 375–
78; Fox Butterfield, Number of Inmates Reaches Record 1.8 Million, New York Times, Mar.
15, 1999, p. A14, col. 4; Fox Butterfield, Prison Rates Among Blacks Reach a Peak, Report
Finds, New York Times, April 7, 2003, p. A12, col. 6.
15. See Paul v. Davis, 424 U.S. 693 (1976), discussed in Christie (1976) at 43–45, 59–67;
Monaghan (1977) at 409–34.
16. Accord, Rosenblatt v. Baer, 383 U.S. 75, 92–94 (1966) (concurring opinion of Justice
Stewart). The Rosenblatt case is discussed in Chapter 6.
CHAPTER TWO
1. New York Times Co. v. Sullivan, 376 U.S. 254, 256–57 (1964).
2. Id. at 257–58.
3. Id. at 261–62.
4. Id. at 258–59.
5. Id. at 262–64.
6. Id. at 273–74.
7. Id. at 276.
8. Id. at 280–82 and n.20.
9. Id. at 270.
10. Id. at 271–72 (internal quotes omitted).
11. Id. at 272 n.13, 279 n.19.
12. Id. at 278.
13. Id. at 279.
14. Id. at 279–80.
15. Id. at 285–86.
16. Id. at 288–92.
17. 361 U.S. 147 (1959).
18. 376 U.S. at 278–79.
19. Id. at 260–61.
20. Near v. Minnesota, 283 U.S. 697, 715 (1931); Chaplinsky v. New Hampshire, 315
U.S. 568, 571–72 (1942); Pennekamp v. Florida, 328 U.S. 331, 348–49 (1946); Beauharnais
v. Illinois, 343 U.S. 250, 266 (1952); Roth v. United States, 354 U.S. 476, 486–87 (1957);
Times Film Corp. v. City of Chicago, 365 U.S. 43, 48 (1961); Konigsberg v. State Bar of
California, 366 U.S. 36, 49, and n.10 (1961). In only one of these cases, Beauharnais, was
liability for defamation at issue. That opinion is discussed in Chapter 15.
21. 376 U.S. at 293–305 (concurring opinions of Justices Black, Douglas, and Goldberg).
For perceptive analyses of New York Times, see Emerson (1970) at 528–43; Kalven (1964) at
195–204, 210–13. Other early analyses are cited in Kalven (1967) at 267 n.3. See also Lewis
(1991) at 1–45, 103–82; Pierce (1965) passim; Powe (1991) at 79–89.
22. Garrison v. Louisiana, 379 U.S. 64, 66 (1964).
23. Id. at 78–79.
24. Id. at 67–74.
316 NOTES
26. Id. at 77.

27. Id. at 74, 78–79.
28. Id. at 75.
29. Id. at 79–88 (concurring opinions of Justices Black, Douglas, and Goldberg).
CHAPTER THREE
1. See Fuller (1969) at 21, reprinted, Fuller (1981) at 232. Accord, Diamond (1971) at 64,
194–95, 261–65, 293; North (1990) at 38–39; Posner (1981) at 192–93, 196–97.
2. [1897] 2 Q.B. 57.
3. For a brief history of the common law of defamation, see Eaton (1975) at 1350.
4. ALI, Restatement (Second) of Torts (1977) § 559.
5. See Madison v. Yunker, 589 P.2d 126, 130 (Mont. 1978).
6. On the requirement of publication, see Sack and Baron (1994) at 121–25.
7. On the distinction between “fact” and “opinion,” see Chapter 17.
8. Ibid. For a discussion of the ambivalence of the common law as regards certain opinions,
particularly those involving ridicule, see Post (1990) at 618–21, 627–29.
9. See examples in Chapter 17 infra at nn.15–18.
10. See Arcand v. Evening Call Pub., 567 F.2d 1163 (1st Cir. 1977) (a statement about an
unidentified officer among 21 policemen was not “of and concerning” plaintiff policeman);
Gintert v. Howard Publications, 565 F.Supp. 829, 833–34 (N.D. Ind. 1983) (an article about
a subdivision was not “of and concerning” any one of the 165 owners).
11. The point is further developed in Chapter 15.
12. Church of Scientology v. Time Warner, Inc., 806 F.Supp. 1157, 1161 (S.D.N.Y. 1992),
on appeal, 238 F.3d 168, 173 n.1 (2d Cir. 2001), cert. denied, 534 U.S. 814 (2001).
13. See Sack and Baron (1994) at 67–69.
14. Id. at 129–31.
15. Id. at 488–89. For an extended critique of presumed damages, see Anderson (1984).
17. See Jones v. E. Hulton & Co., [1909] 2 K.B. 444, aff ’d, [1910] A.C. 20 (an English
decision); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 87 n.13 (1971) (dissenting opinion
of Justice Marshall); ALI, Restatement (First) of Torts § 582 comment g (1938).
18. For a further development of this thesis, see Jones (1992).
19. See Sack and Baron (1994) at 171 (citing cases).
20. Id. at 412–42. Most absolute privileges are concerned with protecting persons speak-
ing in official proceedings—e.g., legislators, judges, witnesses, trial counsel, and at least some
government officials.
21. Id. at 442–66. Most qualified privileges concern communications confined to a limited
number of parties sharing a common interest—e.g., employers and employees, management
personnel, employer references. For further discussion, see Chapter 14.
22. See, e.g., the absolute privilege for fair report (Chapter 11 n.22) and the qualified
privileges engendered by particular relationships (Chapter 14 nn.9–11). For a brief restatement
of the rules applicable to defamation, see Eaton (1975) at 1352–63. For detailed analyses, see
Sack (2002); Sanford (2002); Smolla (1998).
24. See Restatement (Second) of Torts (1977) §§ 623A, 626, 629; Sack and Baron (1994)
at 646–57.
25. See, e.g., Unelko Corp. v. Rooney, 912 F.2d 1049, 1057–58 (9th Cir. 1990), cert.
denied, 499 U.S. 961 (1991). One court found the case for constitutional privilege particularly
compelling in product disparagement cases. Bose Corp. v. Consumers Union, 508 F.Supp.
NOTES 317
1249, 1270–71 (D. Mass 1981), rev’d, 692 F.2d 189 (1st Cir. 1982), aff ’d, 466 U.S. 485 (1984)
(other issues on appeal).
26. ALI, Restatement (Second) of Torts (1965) § 46. See Givelber (1982) for a perceptive
discussion.
27. State Rubbish Collectors Ass’n v. Siliznoff, 240 P.2d 282 (Cal. 1982).
28. See Wiggs v. Courshon, 355 F.Supp. 206 (S.D. Fla. 1973), appeal dismissed, 485 F.2d
1281 (5th Cir. 1973).
29. See n.2, supra.
30. As in the cases cited in nn.27 and 28, supra.
31. See discussion in Chapter 17.
32. ALI, Restatement (Second) of Torts (1977) §§ 766 and 766B, discussed in Keeton
(1984) at 978–1030.
33. See Sack and Baron (1994) @ 671 n.161 (citing cases).
34. ALI, Restatement (Second) of Torts (1977) § 652E.
CHAPTER FOUR
1. United States Constitution, Amendment I.
2. The point is more often assumed than litigated. See, e.g., Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S. 123, 143 (1951) (Justice Black concurring), 199 (Justice
Reed dissenting) (executive action); Watkins v. United States, 354 U.S. 178, 188 (1957)
(contempt of Congress); Wood v. Georgia, 370 U.S. 375, 383–85 (1962) (contempt of court;
state proceeding). For a discussion, see Denbeaux (1986) at 1158–61.
3. United States Constitution, Amendment XIV.
4. See, e.g., Fiske v. Kansas, 274 U.S. 380 (1927) (freedom of speech); Near v. Minnesota,
283 U.S. 697 (1931) (freedom of the press); De Jonge v. Oregon, 299 U.S. 353 (1937)
(freedom to assemble peaceably and to petition for redress of grievances).
5. For a painstaking discussion of the relation between speech and crime, see Greenawalt,
Speech, Crime and the Uses of Language (1989).
6. A recent exposition of the autonomy rationale appears in Dworkin (1996) at 200–9. For
a contrary view, see Sunstein (1993) at 137–44.
7. For a forceful development of the case for free speech as a curb on predatory government,
see Blasi (1977) at 527–44. See also Kalven (1964) at 204–10.
8. The relation of the First Amendment to self-government is developed in Meiklejohn
(1948); in Sunstein (1993) at 121–37; and from a slightly different perspective in Blasi (1999)
(free speech is a means of developing individual character needed for self-government). For a
contrary view, see Dworkin (1996) at 201–9. One problem with this approach is defining the
scope of speech relevant to self-government. See Meiklejohn (1961) at 257, 259, 262–63
(concluding that private libels do not pertain to self-government but that literary, artistic, and
scientific discussions do pertain to self-government). The issue is discussed in Logan (1990) at
555–66.
9. See Dreze and Sen (1989) at 212, 263–64; Sylvia Nassar, It’s Never Fair to Just Blame
the Weather, New York Times, Jan. 17, 1993, p. 1, sec. 4. For a recent discussion, see Michael
Massing, Does Democracy Avert Famine? New York Times, Mar. 1, 2003, p. A19 (national ed.).
See also Posner (1986).
10. The relation of free expression to the search for truth is articulated in Greenawalt, Free
Speech Justifications (1989) at 130–41.
11. These other justifications for protecting free expression are discussed in Greenawalt,
supra n.10 at 141–42, 146–50.
318 NOTES
CHAPTER FIVE
1. Monitor Patriot Co. v. Roy, 401 U.S. 265, 266–70 (1971).
2. Id. at 268–70.
3. Id. at 271.
4. Id. at 271–72.
5. Id. at 274–77.
6. Ocala Star Banner Co. v. Damron, 401 U.S. 295, 295–98 (1971).
7. Id. at 297–99.
8. Id. at 299.
9. Id. at 300–1.
10. See, e.g., Foster v. Laredo Newspapers, 541 S.W.2d 809 (Tex. 1976), cert. denied, 429
U.S. 1123 (1977) (county surveyor). But an issue can be raised as to whether a defamation is
related to the official’s position. That issue was raised in Foster, discussed in Chapter 12.
11. For an argument that the scope of immunity should be more circumscribed, see Blasi
(1977) at 584–85 (constitutional privilege should be restricted to defamations about private
activities having a “close” link to official behavior).
12. Buchanan v. Associated Press, 398 F.Supp. 1196 (D.D.C. 1975); Oliver v. Village
Voice, 417 F.Supp. 235 (S.D.N.Y. 1976); Valento v. Ulrich, 402 N.W.2d 809 (Minn. App. 1987).
13. Rebozo v. Washington Post, 637 F.2d 375 (5th Cir. 1981), cert. denied, 454 U.S. 984
(1981).
14. Thompson v. Evening Star Newspaper, 394 F.2d 774 (D.C. Cir. 1968), cert. denied,
393 U.S. 884 (1968); News-Journal v. Gallagher, 233 A.2d 166 (Del. 1967); Bianco v. Palm
Beach Newspapers, 381 So.2d 371 (Fla. App. 1980).
15. Hemenway v. Blanchard, 294 S.E.2d 603 (Ga. App. 1982) (husband of candidate);
Burns v. Times Argus Ass’n, 430 A.2d 773 (Vt. 1981) (wife of candidate); Krueger v. Austad,
545 N.W.2d 205 (S.D. 1996) (wife of candidate).
16. 639 F.2d 634 (10th Cir. 1981), cert. denied, 451 U.S. 1031 (1981).
17. Id. at 636.
18. Id. at 637.
19. Id.
20. For a similar criticism, see Franklin (1987) at 1665.
21. Lawrence v. Bauer Publishing & Printing Ltd., 446 A.2d 469 (N.J. 1982), cert. denied,
459 U.S. 999 (1982) (referendum); Vassallo v. Bell, 534 A.2d 724 (N.J. Super. 1987) (recall
petition); Cloyd v. Press, Inc., 629 S.W.2d 24 (Tenn. App. 1981) (referendum); Tilton v.
Cowles Pub. Co., 459 P.2d 8 (Wash. 1969), cert. denied, 399 U.S. 927 (1970) (charter
amendment).
CHAPTER SIX
1. Henry v. Collins, 380 U.S. 356 (1965).
2. Id.
3. Beckley Newspapers Corp. v. Frank, 389 U.S. 81 (1967).
4. St. Amant v. Thompson, 390 U.S. 727 (1968).
5. Time, Inc. v. Pape, 401 U.S. 279 (1971).
6. Rosenblatt v. Baer, 383 U.S. 75, 77–78 (1966).
7. Id. at 78–79.
8. Id. at 79–83.
9. Id. at 85.
10. Id. at 85–86.
11. Id. at 86 n.13.
NOTES 319
12. See, e.g., Cibenko v. Worth Publishers, 510 F.Supp. 761 (D.N.J. 1981) (a policeman on
patrol is a public figure).
13. See, e.g., Kahn v. Bower, 284 Cal. Rptr. 244 (Cal. App. 1991); Villarreal v. Harte-Hanks
Communications, Inc., 787 S.W.2d 131 (Tex. App. 1990), cert. denied, 499 U.S. 923 (1991).
14. On principals, compare Palmer v. Bennington School Dist., 615 A.2d 498 (Vt. 1992)
(principals are public officials) with Ellerbee v. Mills, 422 S.E.2d 539 (Ga. 1992), cert. denied,
507 U.S. 1025 (1993) (principals are not public officials). On teachers, see Kelley v. Bonney,
606 A.2d 693, 709 n.21 (Conn. 1992) (discussing the division in authority and holding that
teachers are public officials).
15. Jones v. Palmer Communications, Inc., 440 N.W.2d 884 (Iowa 1989). But in Miller v.
Minority Brotherhood of Fire Protection, 463 N.W.2d 690 (Wis. App. 1990), a fire captain,
exercising discretionary and supervisory authority, was held to be a public figure.
16. 875 F.2d 935 (1st Cir. 1989).
17. Id. at 940–41.
18. Id. at 941.
19. Id.
20. Accord, Nelson v. Globe International, 626 F.Supp. 969 (S.D.N.Y. 1986) (a subordi-
nate government employee suing about a statement falsely attributed to her was not a public
official); Tomson v. Stephan, 15 Media L.Rep. 2378 (D. Kan. 1988) (a subordinate employee
suing for sexual harassment was not a public official).
21. For similar arguments, see Blasi (1977) at 584–85; Franklin (1987) at 1662 n.18, 1677
n.91. For a decision suggesting a similar approach in relating public status to criticism of on-
the-job performance, see Lewis v. Elliott, 628 F.Supp. 512, 521 (D.D.C. 1986).
22. Di Bernardo v. Tonawanda Pub. Co., 499 N.Y.S.2d 553 (App. Div. 1986) (prospective
appointee to school administrative post was a public figure). See also Schiavone Const. Co. v.
Time, Inc., 619 F.Supp. 684, 704–5 (D.N.J. 1985) (a close associate and supporter of a presiden-
tial appointee was a public figure), reversed on other grounds, 847 F.2d 1069 (3d Cir.1988).
23. See Secord v. Cockburn, 747 F.Supp. 779, 784 (D.D.C. 1990) (adviser on military and
diplomatic matters was a public figure).
24. 684 P.2d 450 (Kan. App. 1984), aff ’d, 695 P.2d 812 (Kan. 1985).
25. Id. at 456.
26. Id. at 456, 457 (dissenting opinion).
CHAPTER SEVEN
1. Curtis Publishing Co. v. Butts, 388 U.S. 130, 140 (1967).
2. Id. at 140–42.
3. Id. at 155.
4. Id. at 162, 164–65.
5. Id. at 154–55.
6. The point was perceived at the time in Kalven (1967) at 290–307.
7. Access to the media is a factor frequently cited in ruling that a defamed individual is or
is not a public figure.
8. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1290–91 (D.C. Cir. 1980),
cert. denied, 449 U.S. 898 (1980).
10. Lerman v. Flynt Distrib. Co., 745 F.2d 123, 137–38 (2d Cir. 1984), cert. denied, 471
U.S. 1054 (1985).
11. 627 F.2d at 1297.
12. Id. at 1298.
320 NOTES
13. Id. at 1298–99.

14. Id. at 1299–1300.
15. Id. at 1300.
16. See, e.g., Grass v. News Group Publications, 570 F.Supp. 178, 183–84 (S.D.N.Y.
1983) (a private citizen, challenging a claim made by a gubernatorial candidate, was a public
figure); Beard v. Baum, 796 P.2d 1344 (Alaska 1990) (a state employee reporting on public
corruption was a public figure); Rodriguez-Erdmann v. Ravenswood Hosp., 545 N.E.2d 979
(Ill. App. 1989) (a doctor reporting malpractice at a hospital was a public figure); Einhorn v.
Lachance, 823 S.W.2d 405 (Tex. App. 1992) (pilots reporting on airline safety infractions were
public figures).
17. See, e.g., IBP Confidential Business Documents Litigation, 797 F.2d 632, 646 (8th Cir.
1986); Roffman v. Trump, 754 F.Supp. 411, 417–18 (E.D. Pa. 1990). This problem was
discounted in Kalven (1967) at 305 n.113.
18. 37 F.3d 1541 (4th Cir. 1994).
19. Id. at 1543–50.
20. Id. at 1555.
21. Id. at 1556.
22. Id. at 1559–63.
23. Id. at 1564.
24. 363 S.E.2d 140 (Ga. 1987).
25. Id. at 142. Accord, Snead v. Redland Aggregates, Ltd., 998 F.2d 1325, 1330 (5th Cir.
1993), cert. dismissed, 511 U.S. 1050 (1994) (a dispute reported in the trade press, of limited
interest, was not a matter of public concern); Denny v. Mertz, 318 N.W.2d 141 (Wis. 1982) (a
contestant for control of a large publicly held corporation was not a public figure).
26. 351 F.Supp. 279 (W.D. Va. 1972).
27. Id. at 285. For a discussion of the “context public figure,” see Smolla (1983) at 68–78.
28. Smith v. Pocono Country Place, 686 F.Supp. 1053 (M.D. Pa. 1987). In Sewell v.
Eubanks, 352 S.E.2d 802 (Ga. App. 1987), the court refused to classify such a candidate as a
public figure.
29. Porter v. Channel 7 of Detroit, 17 Media L.Rep. 1898 (Mich. Cir. Ct. 1990).
30. Korbar v. Hite, 357 N.E.2d 135 (Ill. App. 1976).
31. Johnson v. Board of Junior College Dist. No. 508, 334 N.E.2d 442, 447 (Ill. App.
1975) (teacher in a junior college); Walko v. Keen College of New Jersey, 561 A.2d 680, 686–
87 (N.J. Super. 1988) (college administrator).
32. Martin v. Wilson Publishing Co., 497 A.2d 322, 326 (R.I. 1985).
33. De Carvalho v. da Silva, 414 A.2d 806, 813–14 (R.I. 1980).
34. Linn v. United Plant Workers, 383 U.S. 53, 61–65 (1966). The principle has been
applied broadly to all utterances made during a labor dispute. See Old Dominion Branch No.
496 v. Austin, 418 U.S. 264 (1974); Beverly Hills Foodland v. United Food & Commercial
Workers, 39 F.3d 191 (8th Cir. 1994). In addition, union officers are classified as public figures
for purposes of discussions of union affairs. See Henry v. National Ass’n of Air Traffic Specialists,
836 F.Supp. 1204, 1211 (D. Md. 1993).
35. McDonald v. Smith, 472 U.S. 479 (1985).
36. In re IBP Confidential Business Documents Litigation, 797 F.2d 632, 645–46 (8th Cir.
1986).
CHAPTER EIGHT
1. Curtis Publishing Co. v. Butts, 388 U.S. 130, 135–37 (1967).
2. Id. at 137–40.
NOTES 321
3. Id. at 155.
4. Id. at 164–65.
5. Id. at 154–55.
6. Id. at 163–64.
7. Rebozo v. Washington Post, 637 F.2d 375, 379–80 (5th Cir. 1981), cert. denied, 454
U.S. 964 (1981).
8. See, e.g., Bell v. Associated Press, 584 F.Supp. 128, 131 n.9 (D.D.C. 1984) (in addition
to his fame as a professional athlete, Bell gave interviews on the topics of religion, alcohol,
drugs, and crime).
9. For a similar argument, see Blasi (1977) at 578, 582; Lewis (1991) at 210–14; MacKinnon
(1993) at 80–81. For the contrary view, see Post (1990) at 673–74; Ashdown (1984) at 943–
48; Daniels (1984) at 963–67. For a more comprehensive discussion, see Schauer (1984) at
916–21, 926–35.
10. See, e.g., Cepeda v. Cowles Magazines & Broadcasting, Inc., 392 F.2d 417 (9th Cir.
1968), cert. denied, 394 U.S. 840 (1968) (baseball player); Time, Inc. v. Johnston, 448 F.2d
378 (4th Cir. 1971) (basketball player); Carson v. Allied News Co., 529 F.2d 206 (7th Cir.
1976) (entertainer and entertainer’s wife); Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1976),
cert. denied, 434 U.S. 1013 (1978) (children of Julius and Ethel Rosenberg); Vitale v.
National Lampoon, 449 F.Supp. 442 (E.D. Pa. 1978) (singer who had posed for nude photo-
graphs).
11. 626 F.2d 1238 (5th Cir. 1980).
12. Id. at 1240–42, 1248–49.
13. Id. at 1254–55, 1257–58.
14. Id. at 1254. For a critique of Brewer, see Del Russo (1981) at 536–38.
15. 353 N.E.2d 834 (N.Y. 1976).
16. Id. at 839–40. See also Owens v. NBC, 508 So.2d 949 (La. App. 1987) (an entertainer
was falsely described as a “stripper”); Evarts v. Downey, 16 Media L.Rep. 2449 (N.Y. Sup. Ct.
1989) (a “stripper for God” was said to be a “slut” and a “pig”).
17. Time, Inc. v. Firestone, 424 U.S. 448, 449–52 (1976).
18. Id. at 453.
19. Id. at 457.
21. Id. at 250.
22. Ibid.
23. 593 P.2d 777 (Ore. 1979).
24. Id. at 788.
25. Id. at 787. See also Folse v. Delgado Community College, 776 F.Supp. 1133 (E.D. La.
1991) (the head basketball coach at a small college was not a public figure); Torres-Silva v. El
Mundo, 3 Media L.Rep. 1508 (P.R. 1977) (a well-known bandleader was not a public figure).
26. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1280 (3d Cir. 1979) (a
professional athlete with a career-ending disease was a public figure as regards his career); Barry
v. Time, Inc., 584 F.Supp. 1110, 1116–21 (N.D. Cal. 1984) (a college basketball coach at a
school with a history of NCAA rule violations was a public figure as regards those violations);
Gomez v. Murdoch, 475 A.2d 622 (N.J. Super. 1984) (a jockey was a public figure for purposes
of comment about his performance on the track).
27. See cases cited supra nn.10–16.
28. For a similar argument, see Sunstein (1993) at 160–62.
29. See, e.g., Nelson v. Associated Press, 667 F.Supp. 1468 (S.D. Fla. 1987) (a witness in a
divorce proceeding); Kroll Associates v. City of Honolulu, 833 F.Supp. 802 (D. Haw. 1993) (a
322 NOTES
private contractor suing the city for its fee); Tomson v. Stephan, 15 Media L.Rep. 2378 (D.
Kan. 1988) (a complainant in a sexual harassment case).
30. 645 F.2d 1227, 1235 (6th Cir. 1981), cert. dismissed, 454 U.S. 1095 (1981).
31. Russo v. Conde Nast Publications, 806 F.Supp. 603 (E.D. La. 1992) (a witness in a
controversial case sought continuing publicity); Lewis v. McGraw-Hill Publishing Co., 832
P.2d 1118 (Colo. App. 1992) (a litigant in a controversial case sought and obtained extensive
publicity); Martin v. Widener Univ. School of Law, 1992 Del. Super. Lexis 267 (1992) (simi-
lar); Friedgood v. Peters Publishing Co., 521 So.2d 236 (Fla. App. 1988) (similar).
32. 800 F.2d 1208 (D.C. Cir. 1980).
33. Id. at 1211. Compare In re IBP Confidential Business Document Litigation, 797 F.2d
632, 645–46 (8th Cir. 1986) (a witness before a congressional subcommittee was a private
figure).
34. Burgess v. Reformer Publishing Co., 508 A.2d 1359, 1360–61 (Vt. 1986).
35. Id. at 1362 n.4.
CHAPTER NINE
1. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 32–40 (1971).
2. Id. at 43–44.
3. Id. at 57–62 (opinions of Justices Black and White).
4. Id. at 62–87 (opinions of Justices Harlan and Marshall).
5. Three states follow Rosenbloom in all cases: Mount Juneau Enterprises v. Juneau Empire,
891 P.2d 829, 838 (Alaska 1995); Diversified Management v. Denver Post, 653 P.2d 1103,
1108 (Colo. 1982); Aafco Heating & Air Conditioning Co. v. Northwest Publications, 321
N.E.2d 580, 588 (Ind. App. 1974), cert. denied, 424 U.S. 913 (1976). Four states follow
Rosenbloom on particular issues: Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476,
487–88 (Minn. 1985); Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 655 A.2d 417,
428–33 (N.J. 1995); Mauck, Stastny & Rassam v. Bicknell, 625 P.2d 1219, 1222 (N.M. App.
1980); Seegmiller v. KSL, Inc., 626 P.2d 968, 978–79 (Utah 1981). New York follows an
idiosyncratic approach. Chapadeau v. Utica Observer-Dispatch, Inc., 341 N.E.2d 569, 571
(N.Y. 1975); Gaeta v. New York News, 465 N.E.2d 802 (N.Y. 1984). Rosenbloom is also favored
by some commentators. See, e.g., Ashdown (1984) at 951–54.
6. Gertz v. Robert Welch, Inc., 418 U.S. 323, 325–32 (1974).
7. Id. at 345–46.
8. Id. at 346 (internal quotes omitted).
9. Id. at 342.
10. Id. at 344.
11. Id. at 345.
12. Id.
13. Id. at 351.
14. Id. at 351–52.
15. Id. at 352.
16. Id.
17. Id. at 354–55 (opinion of Chief Justice Burger). The decision in Gertz is discussed and
defended in Robertson (1976). For criticism, see Anderson (1975, 1976).
18. Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir. 1982), cert. denied, 459 U.S. 1226
(1983).
19. See, e.g., Sassone v. Elder, 601 So.2d 792 (La. App. 1992), reversed on other grounds,
626 So.2d 345 (La. 1993); Marchiondo v. Brown, 649 P.2d 462 (N.M. 1982); Spence v. Flynt,
816 P.2d 771 (Wyo. 1991), cert. denied, 503 U.S. 984 (1992).
NOTES 323
20. 754 F.2d 1072 (3d Cir. 1985), cert. denied, 474 U.S. 864 (1985).
21. Id. at 1084–87.
22. See Ratner v. Young, 465 F.Supp. 386, 400 (D.V.I. 1979) (a lawyer in a controversial
case, active in seeking media attention, was held to be a public figure); Partington v. Bugliosi,
825 F.Supp. 906 (D. Haw. 1993), aff ’d, 56 F.3d 1147 (9th Cir. 1995) (same).
23. 804 P.2d 393 (Mont. 1991).
24. Id. at 410.
CHAPTER TEN
1. Hutchinson v. Proxmire, 443 U.S. 111, 114–19 (1979).
2. Id. at 135.
3. Id. at 136.
4. Id. at 135.
5. A similar point is made in Blasi (1977) at 583; Del Russo (1981) at 540–41; Smolla
(1983) at 58–59.
6. 624 F.2d 518 (4th Cir. 1980).
7. Id. at 521.
8. See also Lundell Mfg. Co. v. American Broadcasting Companies, 98 F.3d 351, 364 (8th
Cir. 1996), cert. denied, 520 U.S. 1186 (1997).
9. See, e.g., Kroll Associates v. City of Honolulu, 833 F.Supp. 802 (D. Haw. 1993) (a
private investigative firm retained by the city prosecuting attorney was not a public figure);
Forrest v. Lynch, 347 So.2d 1255 (La. App. 1977), cert. denied, 435 U.S. 971 (1978) (a
consulting engineer working on a government contract was not a public figure).
10. 529 So.2d 595 (Miss. 1988).
11. Id. at 602.
13. Id. at 669. See also McDowell v. Paiewonsky, 769 F.2d 942, 950 (3d Cir. 1985).
14. 724 P.2d 562 (Ariz. 1986).
15. Id. at 571.
16. Id. at 570.
17. 16 Media L.Rep. 2305 (Mich. Cir. Ct. 1989).
18. Id. at 2310.
19. Id. at 2309.
20. See Nicholson v. Promotors on Listings, 159 F.R.D. 343, 344–45 (D. Mass. 1994).
21. See the discussion of the Foretich case in Chapter 7.
22. See, e.g., Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F.Supp. 947, 957
(D.D.C. 1976) (public figure status was premised on a preexisting controversy about govern-
ment contracts); Fremont Energy Corp. v. Seattle Post-Intelligencer, 9 Media L.Rep. 1569
(W.D. Wash. 1982) (same).
23. 398 U.S. 6 (1970).
24. Id. at 8.
25. Id. at 13–14.
26. 398 U.S. at 9.
27. See, e.g., Walters v. Linhof, 559 F.Supp. 1231 (D. Colo. 1983) (a proposal for rezon-
ing); Okun v. Superior Court, 629 P.2d 1369 (Cal. 1981), cert. denied, 454 U.S. 1099 (1981)
(efforts to repeal a building ordinance).
28. 653 F.Supp. 451 (D. Mass. 1986).
29. Id. at 460. See also Mosesian v. McClatchy Newspapers, 285 Cal. Rptr. 430 (Cal. App.
1991), cert. denied, 504 U.S. 912 (1992) (an applicant for, and the previous recipient of,
324 NOTES
licenses to hold horse-racing meets was a public figure); Pace v. Rebore, 485 N.Y.S.2d 291
(App. Div. 1985) (the parties involved in obtaining a property tax exemption were public
figures).
30. 16 Media L.Rep. 2465 (C.D. Cal. 1989).
31. Id. at 2466–67. See also Killington Ltd. v. Times Argus, 14 Media L.Rep. 1314 (Vt.
Super. Ct. 1987) (an applicant for a change in ski regulations was a public figure).
32. 7 Media L.Rep. 2433 (Mass. Super. Ct. 1981). Accord, White v. Manchester Enter-
prise, 871 F.Supp. 934 (E.D. Ky. 1994), modified, 910 F.Supp. 311 (E.D. Ky. 1996) (an
applicant for a municipal grant was not a public figure); Eastern Milk Producers v. Milkweed,
8 Media L.Rep. 2100 (N.D.N.Y. 1982) (an applicant for government loan guarantees was not
a public figure).
33. 15 Media L.Rep. 1805 (Mich. App. 1987).
34. Fried v. Daily Review, 11 Media L.Rep. 2145 (Cal. App. 1985); Bee Publications, Inc.
v. Cheektowaga Times, 485 N.Y.S.2d 885 (App. Div. 1985).
CHAPTER ELEVEN
1. Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 159–63 (1979) (the quoted excerpts
from the KGB book are at 159).
2. Id. at 168.
3. Id. at 167.
4. Id. at 166 n.8.
5. For a similar argument, see Franklin (1987) at 1661, 1677–78; Smolla (1983) at 54–58.
6. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), discussed in Chapter 9.
7. See, e.g., Littlefield v. Fort Dodge Messenger, 614 F.2d 581, 584 (8th Cir. 1980), cert.
denied, 445 U.S. 945 (1980) (a lawyer subject to a disbarment proceeding); Mills v. Kingport
Time-News, 475 F.Supp. 1005 (W.D. Va. 1979) (a defendant in a murder trial); KARK-TV v.
Simon, 656 S.W.2d 702 (Ark. 1983) (alleged robbery suspects).
8. See, e.g., Harris v. Quadracci, 48 F.3d 247 (7th Cir. 1995) (a defendant in a highly
publicized trial was a public figure; she had sought to write a book about the trial).
9. 738 P.2d 1246 (Kan. 1987).
10. Id. at 1252.
11. 447 N.W.2d 105 (Wis. App. 1989), cert. denied, 496 U.S. 929 (1990).
12. Id. at 109–10.
13. 580 F.2d 859 (5th Cir. 1978).
14. Id. at 860.
15. Id. at 861. Public figure status was conferred on another alleged organized crime figure
in Bufalino v. Detroit Magazine, Inc., 18 Media L.Rep. 1491, 1493 (Mich. App. 1990). But
public figure status was rejected, despite alleged links to organized crime, in Bufalino v. Associ-
ated Press, 692 F.2d 266 (2d Cir. 1982), cert. denied, 462 U.S. 1111 (1983); Schultz v. Reader’s
Digest Ass’n, 468 F.Supp. 551 (E.D. Mich. 1979); Rancho La Costa v. Superior Court, 165 Cal.
Rptr. 347 (Cal. App. 1980) (the issue was remanded for trial); Embers Supper Club v. Scripps-
Howard Broadcasting Co., 457 N.E.2d 1164 (Ohio 1984), cert. denied, 467 U.S. 1226
(1984).
16. 764 P.2d 1131 (Ariz. App. 1988).
17. Id. at 1140.
18. 425 F.Supp. 814 (N.D. Cal. 1977).
19. Id. at 821. See also American Benefit Life Ins. Co. v. McIntyre, 375 So.2d 239, 250
(Ala. 1979) (the target of a regulatory investigation was a public figure).
20. 532 N.E.2d 675 (Mass. 1989).
NOTES 325
21. Id. at 680.

22. See, e.g., Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981), cert. denied, 484 U.S. 836
(1981); Porter v. Guam Communications, 643 F.2d 615 (9th Cir. 1981), cert. denied, 454 U.S.
940 (1981); Bell v. Associated Press, 584 F.Supp. 128 (D.D.C. 1984); Mi Gi, Inc. v. Gannett
Massachusetts Broadcasters, 519 N.E.2d 283 (Mass. App. 1988).
23. Wiemer v. Rankin, 790 P.2d 347 (Ida. 1990).
24. Id. at 351.
25. For a contrary view, see Blasi (1977) at 583.
CHAPTER TWELVE
1. Curtis Publishing Co. v. Butts, 388 U.S. 130, 154–55 (1967). See the discussion in
Chapter 8.
2. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
3. Hustler Magazine v. Falwell, 485 U.S. 46, 47–48 (1988).
4. See the discussion in Chapter 17. For the text of the Hustler parody, see Post (1990) at 607.
5. 485 U.S. at 57 n.5.
6. Id. at 47.
7. See Buckley v. Littell, 539 F.2d 882, 885–86 (2d Cir. 1976), cert. denied, 429 U.S. 1062
(1977).
8. See, e.g., Loeb v. Globe Newspaper Co., 489 F.Supp. 481 (D. Mass. 1980) (a newspaper
publisher); Live Oak Publishing Co. v. Cohagen, 286 Cal. Rptr. 198 (Cal. App. 1991) (same);
Stolz v. KSFM, 35 Cal. Rptr.2d 740 (Cal. App. 1994), cert. denied, 516 U.S. 820 (1995)
(television station management); Gibson v. Mahoney, 231 So.2d 823 (Fla. 1970), cert. denied,
398 U.S. 951 (1970) (a newspaper publisher). Minor publishers may remain private figures. See
Straw v. Chese Reval, 813 F.2d 356, 361 (11th Cir. 1987), cert. denied, 484 U.S. 856 (1987)
(the publisher of a magazine with 750 subscribers).
9. 726 S.W.2d 384 (Mo. App. 1987).
10. Id. at 385.
11. Id. at 386.
12. 429 N.E.2d 416 (N.Y. 1981).
13. Id. at 418.
14. Accord, Lerman v. Flynt Distrib. Co., 745 F.2d 123 (2d Cir. 1984), cert. denied, 471
U.S. 1054 (1985) (the commentary was germane to the author’s published views); Underwager
v. Salter, 22 F.3d 730 (7th Cir. 1994), cert. denied, 513 U.S. 943 (1994) (same); Adler v. Conde
Nast Publications, 643 F.Supp. 1558, 1565 (S.D.N.Y. 1986) (the commentary pertained to the
author’s editorial position).
15. See, e.g., Dacey v. Florida Bar, 427 F.2d 1292 (5th Cir. 1970); Hotchner v. Castillo-
Puche, 551 F.2d 910 (2d Cir. 1977), cert. denied, 434 U.S. 834 (1977) (but the decision in
Hotchner is also consistent with the analysis in the text).
16. 10 Media L.Rep. 1789 (N.Y. Sup. Ct. 1984).
17. Id. at 1792.
18. Ryder v. Time, Inc., 557 F.2d 824, 824–25 (D.C. Cir. 1976).
19. Id. at 826 and n.3.
21. Id. at 273.
22. Id. Accord, Guinn v. Texas Newspapers, 738 S.W.2d 303 (Tex. App. 1987), cert.
denied, 488 U.S. 1041 (1989) (the article made no reference to Guinn’s official status as a
justice of the peace); Hinerman v. Daily Gazette Co., 423 S.E.2d 560 (W.Va. 1992), cert.
denied, 507 U.S. 960 (1993) (the article was unrelated to minor official posts held by the
326 NOTES
plaintiff ); Foster v. Laredo Newspapers, 541 S.W.2d 809 (Tex. 1976), cert. denied, 429 U.S.
1123 (1977) (an issue of fact was posed as to whether the article was related to Foster’s minor
public office); Phyfer v. Fiona Press, 12 Media L.Rep. 2211 (N.D. Miss. 1986) (the article was
unrelated to the plaintiff ’s public office and his limited public prominence); Aku v. Lewis, 477
P.2d 162 (Haw. 1970) (the broadcast was unrelated to plaintiff ’s position as a police officer).
23. 555 A.2d 321 (R.I. 1989), cert. denied, 493 U.S. 814 (1989).
24. Id. at 322–24.
25. Id. at 325. Accord, Cox v. Hatch, 761 P.2d 556, 560 (Utah 1988): postal workers
appearing in a photograph in published campaign literature were not public officials because “the
alleged defamatory statement is irrelevant to the plaintiffs’ qualifications as postal workers.”
26. Time, Inc. v. Johnston, 448 F.2d 378, 381 (4th Cir. 1971); Street v. National Broadcast-
ing Co., 645 F.2d 1227, 1235–36 (6th Cir. 1981), cert. dismissed, 454 U.S. 1095 (1981);
Contemporary Mission, Inc. v. New York Times Co., 842 F.2d 612, 620 (2d Cir. 1988), cert.
denied, 488 U.S. 856 (1988); Holt v. Cox Enterprises, 590 F.Supp. 408, 412 (N.D. Ga. 1984).
27. 645 S.W.2d 845 (Tex. App. 1982).
28. Id. at 850–51. Accord, Crane v. Arizona Republic, 729 F.Supp. 698, 708 (C.D. Cal.
1989), modified, 972 F.2d 1511 (9th Cir. 1992) (the comments concerned activities subse-
quent to plaintiff ’s retirement as a public official); Rutt v. Bethlehems’ Globe Pub. Co., 484
A.2d 72, 80–81 (Pa. Super. 1984) (same).
29. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), cert. denied,
449 U.S. 898 (1980), discussed in Chapter 7.
30. 418 U.S. at 345. Some earlier decisions gave the concept a broad scope. See Davis v.
NBC, 320 F.Supp. 1070, 1073 (E.D. La. 1970), aff ’d, 447 F.2d 981 (5th Cir. 1971) (the target
of a publicized baseless accusation was a public figure).
31. See Schultz v. Reader’s Digest Ass’n, 468 F.Supp. 551, 559 (E.D. Mich. 1979) (doubt-
ing the viability of the concept); Dresbach v. Doubleday & Co., 518 F.Supp. 1285, 1294–95
(D.D.C. 1981) (same); Grossman v. Smart, 807 F.Supp. 1404, 1409–10 (C.D. Ill. 1992)
(refusing to invoke the concept); Naantaanbuu v. Abernathy, 816 F.Supp. 218, 223 (S.D.N.Y.
1993) (same).
32. Dameron v. Washingtonian Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985), cert.
denied, 476 U.S. 1141 (1986).
33. Id. at 741.
34. Id. at 742.
35. Wiegel v. Capital Times, 426 N.W.2d 43 (Wis. App. 1988).
36. Id. at 50–51.
37. Id. at 51. Accord, Atlanta Constitution v. Jewell, 555 S.E.2d 175 (Ga. App. 2001) (a
security guard who had discovered a bomb during the 1996 Olympics in Atlanta was an
involuntary public figure for purposes of discussing an FBI investigation into whether he had
also planted the bomb) (alternative holding); Bay View Packing Co. v. Taff, 543 N.W.2d 522
(Wis. App. 1995) (a producer that had declined to promptly recall processed foods that were
potentially contaminated was an involuntary public figure for purposes of discussing the con-
tamination episode).
38. Khawar v. Globe International, 965 P.2d 696 (Cal. 1998).
39. Id. at 702–3.
40. Wells v. Liddy, 186 F.3d 505, 512–18 (4th Cir. 1999), cert. denied, 120 S.Ct. 939
(2000).
41. Id. at 539–41.
42. Marcone v. Penthouse International, 754 F.2d 1072 (3d Cir. 1985), cert. denied, 474
U.S. 864 (1985), discussed in Chapter 9.
NOTES 327
43. White v. Mobile Press Register, 514 So.2d 902 (Ala. 1987), discussed in Chapter 13.
44. Scottsdale Publishing, Inc. v. Superior Court, 764 P.2d 1131 (Ariz. App. 1988) (alter-
native ground), discussed in Chapter 11.
45. See cases discussed in Chapter 8.
46. See Foretick v. Advance Magazine Publishers, 765 F.Supp. 1099 (D.D.C. 1991) (the
mother of a public figure was an involuntary public figure); Zupnik v. Associated Press, 31
F.Supp.2d 70 (D. Conn. 1998) (the wife of a public figure was an involuntary public figure).
47. Hutchinson v. Proxmire, 443 U.S. 111 (1979), discussed in Chapter 10.
48. Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979), discussed in Chapter 11.
CHAPTER THIRTEEN
1. Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F.Supp. 947 (D.D.C. 1976).
2. Id. at 955–56.
3. Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 273 (7th Cir. 1983).
4. See, e.g., Snead v. Redland Aggregates, Ltd., 998 F.2d 1325, 1329 (6th Cir. 1993), cert.
dismissed, 511 U.S. 1050 (1994); Trans World Accounts v. Associated Press, 425 F.Supp. 814,
819 (N.D. Cal. 1977); National Life Ins. Co. v. Phillips Publishing, 793 F.Supp. 627, 639 n.20,
641 (D. Md. 1992). For an argument in support of the approach of Martin Marietta, see Fetzer
(1982) (also commenting on other aspects of the public figure status of business enterprise). See
also Note, Corporate Defamation and Product Disparagement (1975).
5. See, e.g., Novick v. Hearst Corp., 278 F.Supp. 277, 279 (D. Md. 1968).
6. Numerous small businesses have been held not to be public figures. Afro-American
Publishing Co. v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966) (a retail drugstore); Wilson v. Scripps-
Howard Broadcasting Co., 642 F.2d 371 (6th Cir. 1981), cert. dismissed, 454 U.S. 1130
(1981) (a rancher); Lake Havasu Estates v. Reader’s Digest Ass’n, 441 F.Supp. 489 (S.D.N.Y.
1977) (a land development company); Yerkie v. Post-Newsweek Stations, 470 F.Supp. 91 (D.
Md. 1979) (a touring company); Pesta v. CBS, 686 F.Supp. 166 (E.D. Mich. 1988) (a doctor).
7. 442 F.Supp. 1341 (S.D.N.Y. 1977).
8. Id. at 1348.
9. 11 Media L.Rep. 1401 (D. Kan. 1984).
10. Id. at 1410.
11. Id.
12. See also Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), cert. denied,
450 U.S. 1041 (1981) (a high-ranking official of a major union was a public figure as regards
alleged diversion of union funds); Ithaca College v. Yale Daily News Publishing Co., 433
N.Y.S.2d 530, 533–34 (Sup. Ct. 1980), aff ’d, 445 N.Y.S.2d 621 (App. Div. 1981) (a private
college was sufficiently prominent to be considered a public figure). But see Snead v. Redland
Aggregates Ltd., 998 F.2d 1325, 1329–30 (5th Cir. 1993), cert. dismissed, 511 U.S. 1050
(1994) (two large corporations were held not to be public figures because they were not known
to the general public); Lawlor v. Gallagher Presidents’ Report, 394 F.Supp. 721 (S.D.N.Y.
1975), remanded, 538 F.2d 311 (2d Cir. 1976) (a top executive in a large corporation was not
a public figure).
13. See discussion at nn.7–11, supra.
14. 623 F.2d 264 (3d Cir. 1980).
15. Id. at 273–74. See also Contemporary Mission, Inc. v. New York Times Co., 842 F.2d
612, 620 (2d Cir. 1988), cert. denied, 488 U.S. 856 (1988) (referring to a firm’s 12 million
solicitations for business); Bose Corp. v. Consumers Union, 508 F.Supp. 1249, 1273–74 (D.
Mass. 1981), rev’d, 692 F.2d 189 (1st Cir. 1982), aff ’d, 466 U.S. 485 (1984) (referring to a firm’s
advertising and invitations for evaluation of its product) (other issues on appeal); Prager v. ABC,
328 NOTES
569 F.Supp. 1229, 1236–37 (D.N.J. 1983), aff ’d, 734 F.2d 7 (3d Cir. 1984) (referring to a firm’s
efforts to obtain publicity); Sunshine Sportswear & Electronics v. WSOC-TV, 738 F.Supp.
1499, 1507 (D.S.C. 1989) (referring to a firm’s extensive advertising); Brake & Alignment World
v. Post-Newsweek, 10 Media L.Rep. 2457, 2458 (Fla. Cir. Ct. 1984) (same); Martinez v. Soignier,
570 So.2d 23, 27–28 (La. App. 1990) (referring to “yellow-pages” advertising by a doctor).
16. See, e.g., Golden Bear Distributing Co. Systems v. Chase Revel, 708 F.2d 944, 952 (5th
Cir. 1983); Long v. Cooper, 848 F.2d 1202, 1205–6 (11th Cir. 1988); Vegod Corp. v. ABC, 603
P.2d 14, 18 (Cal. 1979), cert. denied, 449 U.S. 886 (1980); Bank of Oregon v. Independent
News, Inc., 693 P.2d 35, 42 (Or. 1985), cert. denied, 474 U.S. 826 (1985).
17. 633 F.2d 583 (1st Cir. 1980).
18. Id. at 592.
20. Id. at 933–39.
21. For a review of the leading commercial speech cases see Nike, Inc. v. Kasky, 45 P.3d 243
(Cal. 2002), cert. dismissed as improvidently granted, 2003 U.S. Lexis 5015 (June 26, 2003),
particularly the majority and dissenting opinions in the state court and the dissenting opinion
of Justine Breyer in the Supreme Court. See also Haan (2000).
22. Tavoulareas v. Piro, 817 F.2d 762, 766–71 (D.C. Cir. 1987), cert. denied, 484 U.S. 870
(1987).
23. Id. at 766.
24. Id. at 773–75.
25. Id. at 774–75.
26. Id. at 775 n.13. Some courts appear willing to permit the press to anticipate a public
controversy. See, e.g., Trotter v. Jack Anderson Enterprises, 818 F.2d 431, 434 (5th Cir. 1987)
(emphasis was placed on the need to protect the pathbreaking journalist).
27. 514 So.2d 902, 903 (Ala. 1987).
28. 397 So.2d 926, 927–28 (Fla. App. 1981).
29. McQuoid v. Springfield Newspaper, 502 F.Supp. 1050 (W.D. Mo. 1980).
30. Brueggemeyer v. ABC, 684 F.Supp. 452 (N.D. Tex. 1988). See also Hoffman v. Wash-
ington Post Co., 433 F.Supp. 600 (D.D.C. 1977), aff ’d, 578 F.2d 442 (D.C. Cir. 1978) (a seller
of protein supplements in the context of ongoing debate about their efficacy was a public
figure).
31. Kessler v. Zekman, 620 N.E.2d 1249, 1255 (Ill. App. 1993). See also Park v. Capital
Cities Communications, 585 N.Y.S.2d 902, 905 (App. Div. 1992) (a doctor seeking media
coverage of new eye surgery techniques was a public figure).
32. J&C Inc. v. Combined Communications, 14 Media L.Rep. 2162, 2164 (Ky. App.
1987).
33. Kelly v. State, 520 N.Y.S.2d 959, 961 (App. Div. 1987).
34. Chevalier v. Animal Rehabilitation Center, 839 F.Supp. 1224 (N.D. Tex. 1993).
35. See National Foundation for Cancer Research v. Council of Better Business Bureaus,
705 F.2d 98, 101–2 (4th Cir. 1983), cert. denied, 464 U.S. 830 (1983); Chapin v. Knight-
Ridder, Inc., 993 F.2d 1087, 1092 n.4 (4th Cir. 1993); Church of Scientology v. Siegelman, 475
F.Supp. 950, 954 (S.D.N.Y. 1979); Reader’s Digest Ass’n v. Superior Court, 690 P.2d 610, 617
(Cal. 1984). Accord, Rood v. Finney, 418 So.2d 1 (La. App. 1982), cert. denied, 460 U.S. 1013
(1983) (an individual seeking publicity for a charitable cause was a public figure).
36. See discussion at nn.22–26 supra.
37. See discussion at n.27 supra.
38. Reliance Insurance Co. v. Barron’s, 442 F.Supp. 1341, 1348 (S.D.N.Y. 1977) (discussed
at nn.7–8, supra).
NOTES 329
39. American Benefit Life Ins. Co. v. McIntyre, 375 So.2d 239 (Ala. 1979).
40. Silvester v. ABC, 839 F.2d 1491, 1495, 1497 (11th Cir. 1988).
41. Arnold v. Taco Properties, 427 So.2d 216 (Fla. App. 1983). The court in Arnold found
an identifiable public controversy but cautioned against “a blanket rule that any publication
about a regulated business and its licensing board ipso facto involves a public controversy.” Id. at
219 n.10.
42. Coronado Credit Union v. KOAT Television, 656 P.2d 896 (N.M. App. 1982).
43. 866 F.2d 681 (4th Cir. 1989).
44. Id. at 688 n.10.
45. 866 F.2d at 688.
46. Id. See also National Life Ins. Co. v. Phillips Publishing Co., 793 F.Supp. 627, 639 n.20
(D. Md. 1992) (regulation in itself does not confer public figure status).
47. Beech Aircraft v. National Aviation Underwriters, 11 Media L.Rep. 1401 (D. Kan.
1984) (discussed at nn.9–11, supra).
48. Id. at 1411.
49. 866 F.2d at 682–84.
50. Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 655 A.2d 417, 419–22 (N.J.
1995), cert. denied, 516 U.S. 1066 (1996).
51. Id. at 428–33.
52. Contrary to Turf Lawnmover: Saro Corp. v. Waterman Broadcasting, 595 So.2d 87
(Fla. App. 1992) (consumer fraud was alleged); Outlet Co. v. International Security Group,
693 S.W.2d 621 (Tex. App. 1985) (drug smuggling was alleged); Greenberg v. CBS, Inc., 419
N.Y.S.2d 988 (App. Div. 1979) (medical malpractice was alleged); Taskett v. King Broadcasting
Co., 546 P.2d 81 (Wash. 1976) (a swindle was alleged). In each of these cases the business
plaintiff was held not to be a public figure.
53. Dairy Stores, Inc. v. Sentinel Pub. Co., 516 A.2d 220 (N.J. 1986).
54. Id. at 230.
55. Sisler v. Gannett Co., 516 A.2d 1083 (N.J. 1986).
56. Id. at 1089. The rationale is further developed at id. 1092–93.
57. Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 487–88 (Minn. 1985).
58. See Girod v. El Dia, Inc., 668 F.Supp. 82 (D.P.R. 1987) (a trust company); Foothill
Financial v. Bonneville International Corp., 19 Media L.Rep. 1575 (Utah Dist. Ct. 1991) (a
thrift institution).
59. Arrigoni v. Velella, 488 N.Y.S.2d 184, 187 (App. Div. 1985) (other factors were also
cited in support of the public figure classification).
60. See Solar Enterprises v. Polich, 12 Media L.Rep. 1844, 1845–46 (Minn. Dist. Ct.
1985).
61. United Medical Laboratories v. CBS, 404 F.2d 706 (9th Cir. 1968), cert. denied, 394
U.S. 921 (1969) (a decision that antedates Gertz). See also Miele v. William Morrow & Co.,
670 F.Supp. 136, 139 (E.D. Pa. 1987) (a toxic waste disposal business; New Jersey law was
applied).
62. See, e.g., Tribune Co. v. Levin, 426 So.2d 45 (Fla. App. 1982), aff ’d, 458 So.2d 243
(1984) (a manufacturer of solar power devices was not a public figure).
63. Munn v. Illinois, 94 U.S. 113 (1877); Chas. Wolff Packing Co. v. Court of Industrial
Relations, 262 U.S. 522 (1923); New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).
64. Nebbia v. New York, 291 U.S. 502 (1934).
65. For a similar emphasis on the need to consider the relation of the defamation at issue
to effective self-government, see Logan (1990) at 555–66.
66. See Unelko Corp. v. Rooney, 912 F.2d 1049, 1056 (9th Cir. 1990), cert. denied, 499
330 NOTES
U.S. 961 (1991) (recognizing the public interest in reports about deficient products). Ac-
cord, Quantum Electronics Corp. v. Consumers Union, 881 F.Supp. 753, 764 (D.R.I. 1995);
Rust Evader Corp. v. Plain Dealer Publishing Co., 21 Media L.Rep. 2189, 2190 (W.D. Pa.
1993).
67. For a recent compilation of state positions on the issue, see Turf Lawnmower Repair,
Inc. v. Bergen Record Corp., 655 A.2d 417, 423–25 (N.J. 1995), cert. denied, 516 U.S. 1066
(1996).
68. 771 P.2d 406 (Cal. 1989).
69. Id. at 426 (quoting in part Rouch v. Enquirer & News of Battle Creek, 398 N.W.2d
245, 264–65 [Mich. 1986]). Accord, Rosner v. Field Enterprises, 564 N.E.2d 131, 141–42 (Ill.
App. 1990) (citing numerous decisions in agreement).
CHAPTER FOURTEEN
1. Garrison v. Louisiana, 379 U.S. 64, 72 n.8 (1964).
2. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 751–53 (1985).
3. Id. at 759–60 (quoting from Harley Davidson Motorsports v. Markley, 568 P.2d 1359,
1363 [Ore. 1977]), discussed infra at n.12.
4. Id. at 761. The test was derived from Connick v. Myers, 461 U.S. 138, 147–48 (1983),
according First Amendment protection to government employees who speak on matters of
public concern.
5. 472 U.S. at 762.
6. Id. at 762–63.
7. Id. at 761 n.7.
8. See, e.g., Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1334 (5th Cir. 1993), cert.
dismissed, 511 U.S. 1050 (1994) (recovery was sustained without proof of fault); Cox v. Hatch,
761 P.2d 556, 559–60 (Utah 1988) (strict liability may be applied to a case brought by a private
person not involved in an issue of public concern).
9. See, e.g., Staheli v. Smith, 548 So.2d 1299 (Miss. 1989) (Gertz was rejected as to a
tenure discussion, but protection was accorded under qualified privilege); Marchesi v. Franchino,
387 A.2d 1129, 1131–32 (Md. 1978) (the New York Times standard was applied to a privileged
employee-employer communication); Wynn v. Cole, 284 N.W.2d 144 (Mich. App. 1979) (the
New York Times standard was applied to a privileged employer job reference).
10. 472 U.S. 749 at 787–92 (dissenting opinion of Justice Brennan).
11. Stuempges v. Park, Davis & Co., 297 N.W.2d 252 (Minn. 1980) (an employer job
reference was governed by state qualified privilege; the First Amendment was inapplicable);
Calero v. Del Chemical Corp., 228 N.W.2d 737 (Wis. 1975) (same). But see Rimmer v. Colt
Industries Operating Corp., 495 F.Supp. 1217, 1222–23 (W.D. Mo. 1980), reversed on other
grounds, 656 F.2d 323 (8th Cir. 1981) (an employer letter about a former employee was
protected by Gertz); Jacron Sales Co. v. Sindorf, 350 A.2d 688 (Md. 1976) (same); General
Motors Corp. v. Piskor, 352 A.2d 810 (Md. 1976) (same); Anson v. Erlanger Minerals &
Metals, Inc., 702 P.2d 393 (Okla. App. 1985) (same). Accord, Ryder Truck Rentals, Inc. v.
Latham, 593 S.W.2d 334 (Tex. App. 1979) (a defamation of a truck driver, in connection with
a refusal to rent trucks, was governed by Gertz).
12. Harley Davidson Motorsports v. Markley, 568 P.2d 1359 (Or. 1977). The reasoning at
568 P.2d 1363 was quoted by the Dun & Bradstreet court at 472 U.S. 759–60. See n.2 supra.
13. Nelson v. Lepeyrouse Grain Corp., 534 So.2d 1085 (Ala. 1988). Accord, Vinson v.
Linn-Mar Community School Dist., 360 N.W.2d 108 (Iowa 1984) (an employee was accused
of falsifying time cards).
14. Schomer v. Smidt, 170 Cal. Rptr. 662 (Cal. App. 1980).
NOTES 331
15. Connolly v. Labowitz, 519 A.2d 138 (Del. Super. 1986).

16. Mullen v. Solber, 648 N.E.2d 950 (Ill. App. 1995).
17. Ramirez v. Rogers, 540 A.2d 475 (Me. 1988) (one competitor accused another of child
abuse; the utterance was not part of a public controversy). Accord, Vern Sims Ford v. Hagel,
713 P.2d 736 (Wash. App. 1986) (a customer’s assertions that vendors were thieves were not
part of a public controversy).
18. For further exposition on this point, see Jones (1992) at 1705, 1711–13.
19. Hutchinson v. Proxmire, 443 U.S. 111, 133–34 n.16 (1979); Philadelphia Newspa-
pers, Inc. v. Hepps, 475 U.S. 767, 779 n.4 (1986). Hutchinson is discussed in Chapter 10; Hepps
is discussed in Chapter 18.
20. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 773 (1985) (Justice
White concurring); id. at 784 (Justice Brennan, joined by three others, dissenting).
21. See, e.g., Garrison v. Louisiana, 379 U.S. 64 (1964); Henry v. Collins, 380 U.S. 356
(1965); St. Amant v. Thompson, 390 U.S. 727 (1968). Garrison is discussed in Chapter 2; St.
Amant is discussed in Chapter 22. The opinion in New York Times did not distinguish between
the media and nonmedia parties involved in that litigation.
22. See, e.g., Garcia v. Board of Education, 777 F.2d 1403, 1408–11 (10th Cir. 1985), cert.
denied, 479 U.S. 814 (1986); In re IBP Confidential Business Documents Litigation, 797 F.2d
632, 642 (8th Cir. 1986), cert. denied, 479 U.S. 1088 (1987); Snead v. Redland Aggregates,
Ltd., 998 F.2d 1325, 1333 n.10 (5th Cir. 1993), cert. dismissed, 511 U.S. 1050 (1994);
Underwager v. Salter, 22 F.3d 730, 734–35 (7th Cir. 1994), cert. denied, 513 U.S. 943 (1994).
Contra: Logan v. District of Columbia, 447 F.Supp. 1328, 1335–36 (D.D.C. 1978). In accord
with the view expressed in the text: Blasi (1977) at 591; Christie (1976) at 57–58; Eaton
(1975) at 1403–8, 1416–18; Hill (1976) at 1221–27 (with some qualifications); Lewis (1991)
at 214–16. To the contrary, see Robertson (1976) at 215–20.
23. 472 U.S. at 789 (dissenting opinion of Justice Brennan).
24. 286 A.2d 357 (Pa. 1971), cert. denied, 408 U.S. 930 (1972), overruled in Hepps v.
Philadelphia Newspapers, Inc., 485 A.2d 374, 382 n.5 (Pa. 1984), reversed, 475 U.S. 767
(1986). Matus was overruled only insofar as it had relied on Rosenbloom.
25. Id. at 365.
26. Brewer v. Memphis Publishing Co., 626 F.2d 1238 (5th Cir. 1980), cert. denied, 452
U.S. 962 (1981), discussed in Chapter 8.
27. James v. Gannett Co., 353 N.E.2d 834 (N.Y. 1976), discussed in Chapter 8.
28. See discussion in Chapter 8.
29. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), cert. denied,
449 U.S. 898 (1980), discussed in Chapter 7.
30. See Jones (1994) at 566–67; McAdams (1996) at 2238–46.
31. To some extent, the appetite for gossip may be spurred by a reader’s quest for clues as
to a person’s success or failure. See Posner (1981) at 238–40. But the dimensions of the appetite
appear to go well beyond any rational explanation. See Posner (1995) at 540.
CHAPTER FIFTEEN
1. Beauharnais v. Illinois, 343 U.S. 250, 251–53 (1952).
2. Id. at 251.
3. Id. at 253, 266 n.22.
4. Id. at 254.
5. Id. at 258–61.
6. Id. at 265–66 and n.22.
7. Id. at 266.
332 NOTES
8. Id. at 267–305 (dissenting opinions of Justices Black, Reed, Douglas, and Jackson).
9. Id. at 300–4. For discussions of defamation of ethnic groups, see Arkes (1974); Note, A
Communitarian Defense of Group Libel Laws (1988).
10. 379 U.S. 64 (1964).
11. See the discussion in Chapter 2.
14. 395 U.S. 444 (1969).
15. Id. at 446.
16. Id. at 447.
17. Id. at 447–49. Accord, Hess v. Indiana, 414 U.S. 105, 108–9 (1973).
18. 376 U.S. 254, 268 (1964).
19. Accord, Smolla, Emotional Distress and the First Amendment (1988) at 442–44. See
also Tollet v. United States, 485 F.2d 1087, 1094–96 (8th Cir. 1973) (invalidating a criminal
libel statute).
21. Texas Beef Group v. Winfrey, 11 F.Supp.2d 858, 860–62, 865 (N.D. Tex. 1998),
affirmed on the ground that the challenged statements were either true or nonactionable
opinion, 201 F.3d 680, 688–89 (5th Cir. 2000).
22. 383 U.S. 75 (1966), discussed in Chapter 6.
23. 11 F.Supp.2d at 864 (internal quotes omitted). On the issues raised in the Winfrey case,
see Stahl (1996); Comment, Let Them Eat Beef (1998).
24. 485 F.Supp. 893 (W.D. Mich. 1980), aff ’d, 665 F.2d 110 (6th Cir. 1981).
25. Id. at 900. Accord, Talal v. Fanning, 506 F.Supp. 186 (N.D. Cal. 1980) (600 million
Muslims were said to have been offended).
26. 459 F.Supp. 973 (D. Minn. 1978), aff ’d, 602 F.2d 850 (8th Cir. 1979).
27. Id. at 978.
28. Accord, Barger v. Playboy Enterprises, 564 F.Supp. 1151, 1153–54 (N.D. Cal. 1983),
aff ’d, 732 F.2d 163 (9th Cir. 1984), cert. denied, 469 U.S. 853 (1984) (an article about wives
of members of two chapters of Hell’s Angels was not “of and concerning” anyone). In Auvil v.
CBS “60 Minutes,” 800 F.Supp. 928, 935–36 (E.D. Wash. 1992), the court left open the issue
of whether a group of apple growers could assert a product disparagement claim against a
negative report about apples grown by a large number of aggrieved farmers.
29. For a balanced discussion of the defamation of groups and the extent to which indi-
vidual members may have standing to sue, see Bromme (1985). For illuminating examples, see
Gintert v. Howard Publications, Inc., 565 F.Supp. 829, 832–37 (N.D. Ind. 1983); Brady v.
Ottaway Newspapers, 445 N.Y.S.2d 786, 788–95 (App. Div. 1981).
CHAPTER SIXTEEN
1. Vaill v. Oneida Dispatch Corp., 493 N.Y.S.2d 414 (Sup. Ct., Oneida County, 1985).
2. Id. at 416. For a similar case, raising an issue of constitutional privilege, see Fitzpatrick
v. Milky Way Productions, 537 F.Supp. 165 (E.D. Pa. 1982). Decided before Dun & Bradstreet,
the Fitzpatrick opinion ruled that strict liability was not a permitted standard. Id. at 169. See
also Vescovo v. New Way Enterprises, 130 Cal. Rptr. 86 (Cal. App. 1976) (allowing a similar
case to proceed to trial; plaintiffs had alleged the requisite intent by the publisher).
3. 418 U.S. at 348.
4. The requirement of actual malice is discussed in Chapters 2 and 22.
5. See Newton v. National Broadcasting Co., 930 F.2d 662, 679 (9th Cir. 1990), cert.
denied, 502 U.S. 866 (1991).
NOTES 333
6. Id. at 680. Accord, Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1255–56 (9th
Cir. 1997).
7. Gertz and the requirement of fault are discussed in Chapter 9.
8. On the need for a separate requirement of awareness, see Franklin and Bussel (1984) at
828–47. Expressing a skeptical view, see Sunstein (1984) at 892–901.
9. Dun & Bradstreet and the possible imposition of strict liability are discussed in Chapter 14.
10. Cassidy v. Daily Mirror Newspapers, [1929] 2 K.B. 331. Mr. and Mrs. Corrigan’s real
name was Cassidy; why they used the name Corrigan was not disclosed.
11. Gertz v. Robert Welch, Inc., 680 F.2d 527, 538–39 (7th Cir. 1982), cert. denied, 459
U.S. 1226 (1983) (opinion on remand). The Gertz court also ruled that Robert Welch had
exercised sufficient control over the article’s content and focus to establish an agency relation-
ship between the author and publisher. Id. at 539 n.19.
12. Herbert v. Lando, 596 F.Supp. 1178, 1228–31 (S.D.N.Y. 1984). See also Bindrim v.
Mitchell, 155 Cal. Rptr. 29 (Cal. App. 1979), cert. denied, 444 U.S. 984 (1979) (exonerating
a publisher for the initial publication, made without culpable knowledge, but holding the
publisher liable for a subsequent publication, made after the requisite knowledge had been
acquired).
13. 361 U.S. 147 (1959).
14. Id. at 152–55.
15. 370 U.S. 478 (1962).
16. Id. at 493.
17. Id.
18. See cases discussed in nn.1 and 2 supra. See also Goldstein v. Garlick, 318 N.Y.S.2d
370 (Sup. Ct. 1970) (a newspaper was not liable for allegedly false advertisements); Rubinstein
v. New York Post, 488 N.Y.S.2d 331 (Sup. Ct. 1985) (a newspaper was not liable for a false
death notice supplied by an outsider).
19. Auvil v. CBS “60 Minutes,” 800 F.Supp. 928, 931–32 (E.D. Wash. 1992).
20. Cubby, Inc. v. Compuserve, Inc., 776 F.Supp. 135, 139–42 (S.D.N.Y. 1991).
21. Compare Gertz and Herbert, nn.11 and 12 supra.
22. See, e.g., Anderson v. New York Telephone, 320 N.E.2d 647 (N.Y. 1974). For further
discussion of vicarious liability for defamations, see Robertson (1976) at 263–68.
CHAPTER SEVENTEEN
2. 398 U.S. 6 (1970).
3. Id. at 7–8.
4. Id. at 14. Another aspect of Bresler is discussed in Chapter 10.
5. 418 U.S. 264 (1974).
6. Id. at 266–68.
7. Id. at 285–86. The decision was premised on the National Labor Relations Act, incor-
porating the standards of New York Times. See Linn v. United Plant Guard Workers, 383 U.S.
53 (1966), discussed at Chapter 7, n.34.
8. 485 U.S. 46 (1988).
9. Id. at 49. Another aspect of Falwell is discussed in Chapter 12. The relation of the Hustler
decision to the protection of “opinion” is discussed in Smolla, Emotional Distress and the First
Amendment (1988) at 448–57. For a more comprehensive discussion of the case, see Smolla,
Jerry Falwell v. Larry Flynt (1988).
10. 497 U.S. 1 (1990).
11. Id. at 3–10.
334 NOTES
12. Id. at 18–19.

13. Id. at 21.
14. Id. See also Hofmann Co. v. E. I. duPont de Nemours, 248 Cal. Rptr. 384, 407–8 (Cal.
App. 1988) (opinions not honestly held are protected nonetheless).
15. 785 S.W.2d 649 (Mo. App. 1990).
16. Id. at 651.
17. 791 P.2d 1164 (Colo. App. 1989), cert. denied, 803 P.2d 517 (Colo. 1991).
18. Id. at 1167. Accord, Falls v. Sporting News Publishing Co., 834 F.2d 611 (6th Cir.
1987) (a derogatory opinion is actionable if found to imply negative facts about the plaintiff );
United States Medical Corp. v. M. D. Byline, Inc., 753 F.Supp. 676 (S.D. Ohio 1990) (allega-
tions about overcharging customers were sufficiently factual). But see Economy Carpets v.
Better Business Bureau, 361 So.2d 234 (La. App. 1978), cert. denied, 440 U.S. 915 (1979)
(apparently factual charges were held to be nonactionable opinion). For discussions of Milkovich,
see Hansen (1993) and references there cited at 45 nn.14–16.
19. 22 F.3d 310 (D.C. Cir. 1994).
20. Id. at 312–13.
21. 15 F.3d 1137 (D.C. Cir. 1994).
22. 22 F.3d at 315.
23. Id. at 317.
24. Id. at 315. For an interesting discussion of Moldea, see Logan (1995).
25. See, e.g., Lewis v. Time, Inc., 710 F.2d 549, 552–54 (9th Cir. 1983) (a lawyer was
characterized as unethical and dishonest based on disclosed facts; held to be opinion); Lauderback
v. ABC, 741 F.2d 193, 196–97 (8th Cir. 1984), cert. denied, 469 U.S. 1190 (1985) (an
insurance salesman was depicted as unscrupulous and unethical based on disclosed facts; held
to be opinion); Janklow v. Newsweek, Inc., 788 F.2d 1300, 1303–5 (4th Cir. 1986), cert.
denied, 479 U.S. 883 (1986) (an implication that a prosecutor had an improper motive; held
to be nonactionable opinion); McCabe v. Rattiner, 814 F.2d 839, 842–43 (1st Cir. 1987) (a real
estate activity was described as a “scam”; held to be indefinite and nonactionable opinion).
26. The specific examples are discussed at 15 F.3d 1141–42, 1147–49 and at 22 F.3d 317–18.
27. See Polygram Records, Inc. v. Superior Court, 216 Cal. Rptr. 252, 261 (Cal. App.
1985) (jocular comments); Byars v. Boston Magazine Co., 403 N.E.2d 376, 379–81 (Mass.
1980) (same).
28. Cera v. Mulligan, 358 N.Y.S.2d 642 (Sup. Ct. 1974), aff ’d, 365 N.Y.S.2d 99 (App. Div.
1975) (other issues on appeal).
29. Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (3d Cir. 1966).
30. Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), cert. denied, 429 U.S. 1062 (1977).
31. Beverly Hills Foodland v. United Food & Commercial Workers, 39 F.3d 191 (8th Cir.
1994); Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988), cert. denied, 489 U.S. 1065 (1989).
But other cases have upheld liability for such epithets. Afro-American Publishing Co. v. Jaffe,
366 F.2d 649 (D.C. Cir. 1966) (“bigot”); Fleming v. Moore, 275 S.E.2d 632 (Va. 1981),
reaffirmed sub nom. The Gazette v. Harris, 325 S.E.2d 713 (Va. 1985), cert. denied, 472 U.S.
1032 and 473 U.S. 905 (1985) (“racist”).
32. See, e.g., Loeb v. Globe Newspaper Co., 489 F.Supp. 481 (D. Mass. 1980) (the plaintiff
was said to publish a newspaper “by paranoids for paranoids”); Henderson v. Times Mirror Co.,
669 F.Supp. 356 (D. Colo. 1987), aff ’d, 876 F.2d 108 (10th Cir. 1989) (an athlete’s agent was
said to be a “sleaze-bag” who “slimed his way from the bayou”); Lane v. Random House, Inc.,
1995 U.S. Dist. Lexis 1332 (D.D.C. 1995) (an author was said to be “Guilty of Misleading the
American Public”).
33. 750 F.2d 970 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985).
NOTES 335
34. Id. at 973 (other statements in the column were also challenged as defamatory).
35. Id. at 981–82, 991 (opinion of Judge Starr), 1005–8 (opinion of Judge Bork), 1013–16
(opinion of Judge MacKinnon).
36. See Pring v. Penthouse International, 695 F.2d 438, 442 (10th Cir. 1982), cert. denied,
462 U.S. 1132 (1983); Lewis v. Time, Inc., 710 F.2d 549, 553 (9th Cir. 1983); Ault v. Hustler
Magazine, 860 F.2d 877, 880 (9th Cir. 1988), cert. denied, 489 U.S. 1080 (1989). See also
Burns v. Denver Post, 5 Media L.Rep. 1105, 1107 (Colo. Dist. Ct. 1979), aff ’d, 5 Media L.Rep.
2004 (Colo. App. 1979) (a personal opinion on a private matter is not actionable). For further
discussions of the distinction between fact and opinion, see Franklin and Bussel (1984) at 865–
87; Hill (1976) at 1227–45; Post (1990) at 649–66 (and authorities there cited); Sack (2000)
passim.
37. Bowman v. Heller, 651 N.E.2d 369, 372 (Mass. 1995), cert. denied, 516 U.S. 1032
(1995).
38. Id.
39. Id. at 371–73.
40. Id. at 374–75.
41. Id. at 376–80.
42. Linebaugh v. Sheraton Michigan Corp., 497 N.W.2d 585 (Mich. App. 1993). The
court also sustained a claim for defamation.
43. Esposito-Hilder v. SFX Broadcasting, Inc., 665 N.Y.S.2d 697 (App. Div. 1997).
44. See Chapters 27–29.
45. Harms v. Miami Daily News, 127 So.2d 715 (Fla. App. 1961). Accord, Vescovo v. New
Way Enterprises, Ltd., 130 Cal. Rptr. 86 (Cal. App. 1976).
46. 485 U.S. 46 (1988). See also discussion in Chapter 12 and this chapter nn.8, 9. For
critiques of the decision in Hustler, see Post (1990), LeBel (1989). LeBel makes a strong
argument in support of liability when a distressing depiction is devoid of social utility. See id. at
350–53. But that does not clearly address the issue at hand.
47. Lerman v. Flynt Distrib. Co., 745 F.2d 123 (2d Cir. 1984), cert. denied, 471 U.S. 1054
(1985) (rejecting a false light privacy claim where nude photos were misidentified as those of a
public figure plaintiff ); Dworkin v. Hustler Magazine, 867 F.2d 1188 (9th Cir. 1989), cert.
denied, 493 U.S. 812 (1989) (rejecting claims based on libel, false light privacy, and intentional
infliction of emotional distress arising from insulting articles about a public figure plaintiff ). For
vigorous attacks on pornography in general, see MacKinnon (1993); Sunstein (1992) at 18–29.
48. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), discussed supra at nn.10–14.
49. But see Pring v. Penthouse International, 695 F.2d 438 (10th Cir. 1982), cert. denied,
462 U.S. 1132 (1983). An article depicted a beauty contest participant as having engaged in
fellatio with her baton and with several males. The article was held to be “fanciful” and not
actionable as defamation, false light privacy, or intentional infliction of emotional distress.
Plaintiff ’s status as a public or a private figure was held to be irrelevant. Id. at 442. The point is
raised but not pursued in Post (1990) at 615 n.68. See also LeBel (1989) at 354; Smolla,
Emotional Distress and the First Amendment (1988) at 466–74. A discussion antedating
Hustler v. Falwell would permit liability for particularized insults directed at a private person
only where the words were provocative of violence (“fighting words”) or were uttered in an area
of spatial protection (the home or workplace). See Bernstein (1985) at 1168–77.
CHAPTER EIGHTEEN
1. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 769–71 (1986).
2. Hepps v. Philadelphia Newspapers, Inc., 485 A.2d 374, 378 (Pa. 1984), reversed, 475
U.S. 767 (1986).
336 NOTES
3. 475 U.S. at 776–77.

4. Id. at 778.
5. Id. at 779. For an articulate discussion antedating Hepps, see Franklin and Bussel (1984)
at 851–65.
6. For a discussion of shield laws and their interpretation, see Debevoise & Plimpton (1996).
7. 567 N.E.2d 1270 (N.Y. 1991), cert. denied, 500 U.S. 954 (1991). For a discussion of the
case, see Lewis (1991) at 211–14.
8. Id. at 1276.
9. Id. at 1280–82 (emphasizing the special role of letters to the editor). See also Lewis v. Time,
Inc., 710 F.2d 549, 552 (9th Cir. 1983): a prediction that a lawyer will be disbarred was an
“outsider’s prediction of the uncertain outcome of future adjudication” and was protected opinion.
10. 750 F.2d 970 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985), discussed in
Chapter 25.
CHAPTER NINETEEN
1. 487 N.W.2d 205 (Mich. 1992), cert. denied, 507 U.S. 967 (1993).
2. Id. at 216–20. Accord, AIDS Counseling & Testing Centers v. Group W TV, 903 F.2d
1000, 1004–5 (4th Cir. 1990) (false statements about an AIDS testing service were not action-
able because they were not material to the “sting” of the allegedly defamatory broadcast).
3. Masson v. New Yorker Magazine, 501 U.S. 496, 499–502, 508 (1991).
4. Id. at 511–12. Fabricated quotations were one basis of liability in Carson v. Allied News
Co., 529 F.2d 206, 212–13 (7th Cir. 1976) (actual malice was premised on the fabrication).
5. 501 U.S. at 502–8.
6. Id. at 516.
7. Id. at 516–17.
8. Id. at 517.
9. Id. at 524.
10. Margolick, Psychoanalyst Loses Libel Suit Against New Yorker Reporter, New York
Times, Nov. 3, 1994, at A1.
11. 401 U.S. 279 (1971).
12. Id. at 287.
13. Id. at 290.
14. 466 U.S. 485 (1984).
15. Id. at 487–92.
16. Id. at 492 n.8.
17. Id. at 512–13. For a critique of the Bose case, see Monaghan (1985).
18. 501 U.S. at 518–20.
CHAPTER TWENTY
1. Edwards v. National Audubon Society, 556 F.2d 113, 117 (2d Cir. 1977), cert. denied,
434 U.S. 1002 (1977).
2. Id. at 115–20.
3. Id. at 120.
4. Id. The decision in Edwards was anticipated in Medina v. Time, Inc., 439 F.2d 1129 (1st
Cir. 1971), affirming 319 F.Supp. 398 (D. Mass. 1970): publication of the statements of others
about Medina’s participation in the My Lai massacre in Vietnam was held to be protected
against a defamation suit if the statements were accurately reported.
5. Cianci v. New Times Publishing Co., 639 F.2d 54, 69–70 (2d Cir. 1980); Crane v.
NOTES 337
Arizona Republic, 729 F.Supp. 698, 710–11 (C.D. Cal. 1989), modified, 972 F.2d 1511 (9th
Cir. 1992) (a press report was not sufficiently neutral and accurate to qualify for the privilege).
6. Endorsing the privilege: Price v. Viking Penguin, Inc., 881 F.2d 1426, 1433 (8th Cir.
1989), cert. denied, 493 U.S. 1036 (1990); Barry v. Time, Inc., 584 F.Supp. 1110, 1124–28
(N.D. Cal. 1984); Sunshine Sportswear & Electronics v. WSOC TV, 738 F.Supp. 1499, 1510
(D.S.C. 1989); Krauss v. Champaign News Gazette, 375 N.E.2d 1362, 1363 (Ill. App. 1978);
Gist v. County Sheriff ’s Dept., 671 N.E.2d 1154, 1162 (Ill. App. 1996). Rejecting the privilege:
Dickey v. CBS, 583 F.2d 1221, 1225–26 (3d Cir. 1978); Newell v. Field Enterprises, 415
N.E.2d 434, 451–52 (Ill. App. 1980); McCall v. Courier Journal, 623 S.W.2d 882, 886–87
(Ky. 1981), cert. denied, 456 U.S. 975 (1982); Postill v. Booth Newspapers, 325 N.W.2d 511,
517–18 (Mich. App. 1982); Tunney v. American Broadcasting Co., 441 N.E.2d 86, 92 (Ill. App.
1982); Hogan v. Herald Co., 446 N.Y.S.2d 836, 842 (App. Div. 1982), aff ’d, 444 N.E.2d 1002
(N.Y. 1982); Young v. The Morning Journal, 669 N.E.2d 1136, 1138 (Ohio 1996); Janklow v.
Viking Press, 378 N.W.2d 875, 881 (S.D. 1985).
7. See Barry v. Time, Inc., 584 F.Supp. 1110, 1125–27 (N.D. Cal. 1984) (disregarding the
limitation and recognizing the Edwards privilege absent a responsible organization).
8. See McManus v. Doubleday & Co., 513 F.Supp. 1383, 1390–91 (S.D.N.Y. 1981)
(rejecting the Edwards privilege when the defamatory statements came in response to a reporter’s
queries).
9. Most courts have ruled that Edwards is inapplicable if the plaintiff is a private person. See
Dixson v. Newsweek, Inc., 562 F.2d 626, 630–31 (10th Cir. 1977); Crane v. Arizona Republic,
729 F.Supp. 698, 710–11 (C.D. Cal. 1989), modified, 972 F.2d 1511 (9th Cir. 1992); Khawar
v. Globe International, 965 P.2d 696, 704–8 (Cal. 1998); Davis v. Keystone Printing Service,
507 N.E.2d 1358, 1368–69 (Ill. App. 1987). A few courts have reached contrary conclusions.
See the Krauss and Gist cases, cited in n.6 supra, and the April case, cited in n.14 infra.
10. 556 F.2d at 120.
11. Martin v. Wilson Publishing Co., 497 A.2d 322, 324–25 (R.I. 1985).
12. Id. at 329.
13. Id. at 330 n.5.
14. April v. Reflector-Herald, Inc., 546 N.E.2d 466, 467–68 (Ohio App. 1988).
15. Id. at 469. Ohio has since repudiated Edwards. See Young v. The Morning Journal, 669
N.E.2d 1136, 1138 (Ohio 1996).
16. See, e.g., KTRK Television v. Fielder, 950 S.W.2d 100 (Texas App. 1997). KTRK was
expanded to include any allegation of wrongdoing in Green v. CBS, 286 F.3d 281 (5th Cir.
2002) (applying Texas law). Green goes too far. It is analogous to Edwards in allowing republi-
cation of defamatory matter, unrelated to government proceedings, without inquiring whether
the publisher had been culpable under the standard of New York Times or Gertz (whichever is
applicable). Green should be repudiated.
17. See discussion in Chapter 11 at n.22.
18. For further discussions of the privilege of neutral reportage, see Abrams (1991); Boasberg
(1991); Comment, Constitutional Privilege to Republish Defamation (1977); Comment, Re-
stricting the First Amendment Right to Republish Defamatory Statements (1981); Dobbels
(1982); Nelson (1991); Note, The Developing Privilege of Neutral Reportage (1983); Page
(1990); Saef (1992); Wertman (1996).
CHAPTER TWENTY-ONE
1. Dempsey v. The National Enquirer, 702 F.Supp. 934, 935–36 (D. Me. 1989) (applying
Maine law). The National Enquirer was no longer involved in the case.
2. Id. at 936–38.
338 NOTES
3. Time, Inc. v. Hill, 385 U.S. 374, 376–80 (1967); Garment (1982) passim.
4. Id. at 387–88, 394. The Hill case is discussed in Lewis (1991) at 183–89.
5. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 246–48 (1974).
6. Id. at 248.
7. Id. at 252–54.
8. See Kalven (1966) at 339–41; Kalven (1967) at 280–84, 303–8; Kelso (1993) passim;
Zimmerman (1989) passim; Zuckman (1990) at 255–59. See also Hill (1976) at 1270–75,
1301–3. For an articulate defense of false light privacy, albeit with limitations, see Schwartz
(1991) passim. See also Kay (2000).
9. 167 N.E. 432 (N.Y. 1929).
10. Id. at 433.
11. 28 N.Y.S.2d 327 (Sup. Ct. 1941).
12. Id. at 328–29.
13. Id. at 329–30.
14. See Bowen v. Independent Pub. Co., 96 S.E.2d 564, 565 (S.C. 1957) (it is defamatory
to say a white person is black); Matherson v. Marchello, 473 N.Y.S.2d 998, 1005 (App. Div.
1984) (a false imputation of homosexuality is defamatory).
15. Dempsey, supra n.1 (false authorship); Hinish v. Meier & Frank Co., 113 P.2d 438 (Or.
1941) (false signature). But cf. Kitt v. Capital Concerts, Inc., 742 A.2d 856, 859–60 (D.C. App.
1999) (use of an impersonator to portray plaintiff clarinetist was not highly offensive and thus
was not actionable).
16. Spahn v. Messner, 221 N.E.2d 543 (N.Y. 1966), vacated, 387 U.S. 239 (1967),
reaffirmed, 233 N.E.2d 840 (1967), appeal dismissed, 393 U.S. 1046 (1969). On the favorable
nature of the falsehoods, see the lower court opinions at 250 N.Y.S.2d 529, 538–42 (Sup. Ct.
1964), aff ’d, 260 N.Y.S.2d 451, 456 (App. Div. 1965).
17. Peoples Bank & Trust Co. v. Globe International Publishing, Inc., 978 F.2d 1065,
1066–67 (8th Cir. 1992).
18. Mitchell v. Globe International Publishing, Inc., 817 F.Supp. 72 (W.D. Ark. 1993).
19. 978 F.2d at 1068.
20. ALI, Restatement (Second) of Torts (1977) § 652D comment a; Moore v. Big Picture
Co., 828 F.2d 270, 273–74 (5th Cir. 1987) (disclosure to eight persons was not sufficient to
constitute “publicity”).
21. See Chapter 16 for a discussion of the parallel requirements as to defamation, in
particular Newton v. National Broadcasting Co., 930 F.2d 662, 679 (9th Cir. 1990), cert.
denied, 502 U.S. 866 (1991). False light privacy also requires that the statement at issue be “of
and concerning” the plaintiff. See Michigan United Conservation Clubs v. CBS News, 485
F.Supp. 893, 904 (W.D. Mich. 1980), aff ’d, 655 F.2d 110 (6th Cir. 1981); Kitt v. Capital
Concerts, Inc., 742 A.2d 856, 859–60 (D.C. App. 1999).
23. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), discussed in Chapters 7 and 8.
26. 385 U.S. 374 (1967).
27. 419 U.S. at 250–51. The parallel between Hill and Rosenbloom is made clear in the
prescient treatment by Kalven (1967) at 280–90.
28. See Machleder v. Diaz, 801 F.2d 46, 54 (2d Cir. 1986), cert. denied, 479 U.S. 1088
(1987) (not resolving the issue), reversing 618 F.Supp. 1367, 1373 n.4 (S.D.N.Y. 1985) (declin-
ing to apply Gertz); Rinsley v. Brandt, 446 F.Supp. 850, 854–56 (D. Kan. 1977) (Gertz applies
if the plaintiff is a private person); Tomson v. Stephan, 15 Media L.Rep. 2378, 2382 (D. Kan.
NOTES 339
1988) (same); Jones v. Palmer Communications, 440 N.W.2d 884, 894 (Iowa 1989) (same);
Diamond Shamrock Refining & Marketing Co. v. Mendez, 844 S.W.2d 198, 200 (Tex. 1992)
(declining to apply Gertz and citing cases in support).
29. Cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), and The Florida Star v.
B.J.F., 491 U.S. 524 (1989), both rejecting claims for public disclosure of private facts based on
public records.
30. See, e.g., Fellows v. National Enquirer, Inc., 721 P.2d 97, 100–9 (Cal. 1986) (citing
numerous cases to this effect). Concerns have been expressed that false light privacy actions may
circumvent important limitations on defamation claims. See Hill (1976) at 1274–75; Zimmerman
(1989) at 393–95; Diamond Shamrock, supra n.28 at 209–11 (concurring opinion). In view of
Fellows and the cases there cited, these concerns appear to be without foundation.
31. Brewer v. Memphis Publishing Co., 626 F.2d 1238 (5th Cir. 1980), cert. denied, 452
U.S. 962 (1981); James v. Gannett Co., 353 N.E.2d 834 (N.Y. 1976). Brewer and James are
discussed in Chapter 8 and Chapter 14.
32. 385 U.S. at 393.
33. See discussions cited supra at n.8.
34. 385 U.S. 377–78.
CHAPTER TWENTY-TWO
1. 376 U.S. 254 (1964).
2. Id. at 285–86.
3. Id. at 260–61, 286.
4. Id. at 261, 286–87.
5. Id. at 287.
6. Id. at 288.
7. 388 U.S. 130 (1967).
8. 388 U.S. at 157–58. See also id. at 169–70 (concurring opinion of Chief Justice Warren).
9. Reported as Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
10. Id. at 158–59. See also id. at 165 (concurring opinion of Chief Justice Warren).
11. St. Amant v. Thompson, 390 U.S. 727, 728–30 (1968).
12. Id. at 731.
13. Id. at 732–33.
14. Id. at 732.
15. Herbert v. Lando, 441 U.S. 153, 155–58 (1979). A different aspect of the same case is
discussed in Chapter 16 at n.12.
16. Id. at 160.
17. Id. at 171–74.
18. Id. at 176 and n.25. For a critique, see Lewis (1983) at 609–14.
19. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 660–82 (1989).
20. Id. at 682–85, 690–92.
21. Id. at 692. For discussions of the implementation of the actual malice standard, see
Bloom (1985) at 255–335; Oakes (1979). For discussions of problems associated with the
negligence standard, see Bloom (1985) at 335–93; Daniels (1984) at 958–63; Eaton (1975) at
1428–30; Franklin (1984) passim; LaRue (1981); Robertson (1976) at 250–68. Most prob-
lems can be averted by adopting the procedural reforms suggested in Chapters 24 and 25.
CHAPTER TWENTY-THREE
1. The estimates are summarized in Gilles (1998) at 1779. The leading empirical studies are
Bezanson, Cranberg, and Soloski (1987); Franklin (1980, 1981); Gilles (1998) at 1774–83
340 NOTES
(summarizing prior studies); Gillmor (1992) at 124–52; Libel Defense Resource Center (1995,
1998); Lynch (1988); Noam and Dennis (1989) at 1–120.
2. See the discussion of Herbert v. Lando in Chapter 22.
3. Legal Defense Resource Center (1998) at 13–14.
4. The case was MMAR Group v. Dow Jones & Co., 987 F.Supp. 535 (S.D. Tex. 1997).
Subsequent developments are discussed in Susan Borreson, Withheld Evidence Opens New
Chapter in Journal Libel Suit, Texas Lawyer, Apr. 19, 1999, at 1.
5. See Boies (1995) at 1208–10; Franklin and Rabin (1996) at 1018–19. See also the
empirical studies cited in n.1 supra.
6. See Boies (1995) at 1216; Sack and Baron (1994) at 821–31.
7. See the discussion of Gertz in Chapter 9.
8. See the discussion of whistleblowers in Chapter 7.
9. For other discussions expressing dissatisfaction with the current state of defamation law,
see Anderson (1991) at 510–36; Dworkin (1996) at 210–11; Epstein (1986) at 783–86, 801–
14; Ingber (1979) at 826–42; Lewis (1991) at 200–27; Powe (1991) at 113–28; Smolla (1983)
at 2–7, 12–14; Smolla (1986); Van Alstyne (1984) at 796–98.
CHAPTER TWENTY-FOUR
1. See Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) and the critical review in
Monaghan (1985).
2. The statutes are summarized in Sack and Baron (1994) at 537–50, 837–65.
3. For reform proposals embodying features of the proposal made in the text, see Barrett
(1986) passim; Dworkin (1996) at 191–94, 212–13; Epstein (1986) at 814–17; Forer (1987)
at 289–97, 322–35; Franklin (1983) passim; Franklin (1986) passim; Ingber (1979) at 850–58;
Leval (1988) passim; Lewis (1983) at 614–17; Lewis (1991) at 227–29; Powe (1991) at 128–
39; Van Alstyne (1984) at 799–809. A proposal adopted in 1993 by the National Conference
of Commissioners of Uniform State Laws has yet to be adopted by any state. See Ackerman
(1994) discussing that proposal. None of these proposals is as comprehensive as the one
suggested in the text.
4. See Franklin and Rabin (1996) at 1022–26. Even the “more modest” proposal discussed
therein has failed to pass muster and has not been enacted.
5. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256–58 (1974).
6. See Herbert v. Lando, 441 U.S. 153, 167 (1979) (majority opinion). See also id. at 178
(concurring opinion), id. at 190 (dissenting opinion), id. at 207 (dissenting opinion).
CHAPTER TWENTY-FIVE
1. See Jones (1992) at 1716–21, 1739, 1740–45.
2. See Lewis (1983) at 620; Logan (1990) at 541 nn.264, 265 (providing references to
other discussions).
3. Sharon v. Time, Inc., 599 F.Supp. 538 (S.D.N.Y. 1984) (setting the case for trial).
Subsequent rulings were concerned with procedural issues: 103 F.R.D. 86 (S.D.N.Y. 1984);
609 F.Supp. 1291 (S.D.N.Y. 1985).
4. Westmoreland v. CBS, Inc., 596 F.Supp. 1170 (S.D.N.Y. 1984) (setting the case for
trial). Subsequent rulings were concerned with procedural issues: 584 F.Supp. 1206 (D.D.C.
1984), reversed, 770 F.2d 1168 (D.C. Cir. 1985).
CHAPTER TWENTY-SIX
1. See, e.g., Del Russo (1981) at 525–34 (proposing immunity for defamations uttered in
discussions of public affairs); Logan (1990) at 525–34 (same); Lynch (1988) (proposing immu-
NOTES 341
nity for criticisms of high-level public officials); O’Neil (2001) at 30–35 (apparently favoring
broad immunity).
2. 401 U.S. 295 (1971).
3. See, e.g., Ryder v. Time, Inc., 557 F.2d 824 (D.C. Cir. 1972) (discussed in Chapter 12);
Mathis v. Philadelphia Newspapers, 455 F.Supp. 406 (E.D. Pa. 1978) (the wrong photograph
was used in reporting on a bank robbery).
4. 656 S.W.2d 702 (Ark. 1983).
5. Id. at 703.
6. See, e.g., Triangle Publications, Inc. v. Chumley, 317 S.E.2d 534 (Ga. 1984) (a teenager
was falsely described as pregnant); Schrottman v. Barnicle, 437 N.E.2d 205 (Mass. 1982), cert.
denied, 472 U.S. 1032 and 473 U.S. 905 (1985) (a racist slur was falsely attributed to the
plaintiff ); The Gazette v. Harris, 325 S.E.2d 713 (Va. 1985) (three separate cases concerned [1]
a false accusation of a crime, [2] a false description of a single woman as pregnant, and [3] a false
allegation of child abuse).
8. Examples from a variety of media include Broadcast Hoaxes, 6 F.C.C. Record 6935
(1992) (giving examples of hoaxes); Levine (2000) (same); James G. Goodale, The Libel Suit
That Never Was, National Law Journal, Mar. 8, 1993, at 17 (a televised staging of a news
story); Jonathan Friendly, Disclosure of Two Fabricated Articles Causes Papers to Re-examine
Their Rules, New York Times, May 25, 1981, p. A1, col. 1 (newspaper hoaxes); Lewis
Grossberger and Lucy Howard, The Pulitzer Prize Hoax, Newsweek, Apr. 27, 1981, p. 62
(same); Errata, 50 Washington Law Review 230 (1975) (a fabricated quotation in a legal
article). Hoaxes continue at a disturbing rate. See Dan Barry, David Barstow, Jonathan D.
Glater, Adam Liptak, and Jaques Steinberg, Correcting the Record: Times Reporter Who
Resigned Leaves Long Trail of Deception, New York Times, May 11, 2003, sec. 1, p. 1, col. 1.
9. 546 So.2d 410 (Fla. App.), review denied, 553 So.2d 1165 (Fla. 1989).
10. See Schauer (1992).
11. United States Constitution, Amendment V.
12. See, generally, Jones (1995).
13. See Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988), cert. denied, 490 U.S. 1114
(1989) and related cases summarized in Jones (1995) at 78.
14. See Jones (1995) at 51–65 for the leading cases, in some of which the property owner
prevailed.
15. See, particularly, Blasi (1977).
16. See Faulk v. Aware, Inc., 244 N.Y.S.2d 259 (App. Div. 1963), aff ’d, 200 N.E.2d 778
(N.Y. 1964) and the discussion in Faulk (1983).
CHAPTER TWENTY-SEVEN
1. Warren and Brandeis (1890).
2. In particular, Prince Albert v. Strange, 1 Mach. & G. 25, 41 Eng. Rep. 1171 (1849),
aff ’d, 2 De G. & Sm. 652, 64 Eng. Rep. 293 (1849).
3. Warren and Brandeis (1890) at 205–6, 213.
4. Id. at 195–96.
5. Id. at 214–18.
6. Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902).
7. Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905).
8. Id. at 71, 78.
9. New York Civil Rights Law §§ 50, 51. For a historical perspective, see Leebron (1991).
10. Restatement (Second) of Torts (1977) § 652B.
342 NOTES
11. Id. § 652D.

12. See Posner (1995) at 536, 538–39.
13. Whalen v. Roe, 429 U.S. 589, 598–600 (1977) (sustaining a New York statute relating
to increased reporting of pharmaceutical prescriptions).
14. For general discussions of the right to privacy, see Alderman and Kennedy (1995) (a
review of recent legal developments); Forer (1987) at 115–39, 342–46 (same); Inness (1992)
(an examination of the social and philosophical foundations of the right to privacy); McCarthy
(1987) (a systematic exposition of legal doctrine); Posner (1978) (an economic analysis of legal
doctrine); Posner (1981) at 231–347 (essentially the same); Symposium, The Right to Privacy
One Hundred Years Later (1991) (multiple contributions, mainly on legal aspects). For refer-
ences to the economic literature, see Posner (1995) at 531 n.1. See also Murphy (1996). For a
response to economic analysis, see Bloustein (1978).
CHAPTER TWENTY-EIGHT
1. Sidis v. F. R. Pub. Corp., 113 F.2d 806, 807 (2d Cir. 1940), cert. denied, 311 U.S. 711
(1940).
2. Id. at 807–8.
3. Id. at 809.
4. Id. For a strong endorsement of the Sidis approach, see Hill (1976) at 1255–69, 1286–
90. On the relevance of a confidential relationship, see id. at 1291–99. For an analysis of the
case, see Posner (1981) at 261–62.
5. Sipple v. Chronicle Publishing Co., 201 Cal. Rptr. 665, 666–67 (Cal. App. 1984).
6. Id. at 668–69.
7. Id. at 670.
8. Id. For an articulate discussion of Sipple and the problems associated with “outing”
homosexuals, see Elwood (1992).
9. Virgil v. Time, Inc., 527 F.2d 1122, 1123–25 (9th Cir. 1975), cert. denied, 425 U.S. 998
(1976).
10. Id. at 1125–27.
11. Id. at 1128–30.
12. Id. at 1131.
13. 424 F.Supp. 1286, 1289, and n.2 (S.D. Cal. 1976) (sentences rearranged).
14. Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir. 1981).
15. Id. at 308.
16. Id. at 308–9.
17. See Cohen v. Marx, 211 P.2d 320 (Cal. App. 1949) (a prizefighter). Accord, Bilney v.
Evening Star Newspaper, 406 A.2d 652 (Md. App. 1979) (players on a nationally ranked
college basketball team were public figures; publication of information on their academic
performance, disclosing a prospect of ineligibility, was of public concern and not an invasion of
privacy).
18. See Gilbert v. National Enquirer, 51 Cal. Rptr.2d 91 (Cal. App. 1996) (an actress).
19. See Dingee v. Philadelphia Daily News, 328 F.2d 641 (3d Cir. 1964) (police officer);
White v. Fraternal Order of Police, 707 F.Supp. 579 (D.D.C. 1989), aff ’d in pertinent part, 909
F.2d 512 (D.C. Cir. 1990) (police officer); Stryker v. Republic Pictures Corp., 238 P.2d 670
(Cal. App. 1951) (marine sergeant); Reardon v. News-Journal Co., 164 A.2d 263 (Del. 1960)
(judge).
20. See, e.g., Grunseth v. Marriott Corp., 872 F.Supp. 1069 (D.D.C. 1995), aff ’d, 1996
U.S. App. Lexis 3688 (D.C. Cir. 1996) (candidate for governor); Kapellas v. Kofman, 459 P.2d
912 (Cal. 1969) (candidate for city council).
NOTES 343
21. Perkins v. Freedom of Information Comm’n, 635 A.2d 783 (Conn. 1993); Hastings &
Sons Pub. Co. v. City Treasurer, 375 N.E.2d 299 (Mass. 1978).
22. Athens Observer, Inc. v. Anderson, 263 S.E.2d 128 (Ga. 1980); Bradley v. Saranac
Board of Education, 565 N.W.2d 650 (Mich. 1997).
23. Smith v. NBC, 292 P.2d 600 (Cal. App. 1956).
24. Johnson v. Harcourt, Brace, Jovanovich, Inc., 118 Cal. Rptr. 370 (Cal. App. 1974).
25. Goodrich v. Waterbury Republican-American, 448 A.2d 1317 (Conn. 1982).
26. Rutledge v. Phoenix Newspapers, 715 P.2d 1243 (Ariz. App. 1986). But cf. Buller v.
Pulitzer Pub. Co., 684 S.W.2d 473 (Mo. App. 1984) (an obvious aberration).
27. Afro-American Publishing Co. v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966).
28. Cinel v. Connick, 15 F.3d 1338 (5th Cir. 1994), cert. denied, 513 U.S. 868 (1994).
29. Boyles v. Mid-Continent Television, 431 So.2d 627 (Fla. App. 1983), aff ’d, 467 So.2d
282 (Fla. 1985).
30. Harnish v. Herald-Mail Co., 286 A.2d 146 (Md. 1972).
31. Carr v. Mobile Video Tapes, 893 S.W.2d 613 (Tex. App. 1994).
32. Pasadena Star-News v. Superior Court, 249 Cal. Rptr. 729 (Cal. App. 1988).
33. Carlisle v. Fawcett Publications, 20 Cal. Rptr. 405 (Cal. App. 1962).
34. Id. at 407–10.
35. Id. at 415–16. Accord, Friedan v. Friedan, 414 F.Supp. 77 (S.D.N.Y. 1976) (the former
husband of a public figure could not preclude publication of a twenty-five-year-old photo of
himself with his former wife); Buzinski v. Do All Co., 175 N.E.2d 577 (Ill. App. 1961) (a
bystander captured in a newsworthy photo could not bar publication).
36. See, e.g., Barbieri v. News Journal, 189 A.2d 773 (Del. 1963) (the plaintiff, twenty
years earlier, had been the last person to be whipped for a criminal offense); Roshto v. Hebert,
439 So.2d 428 (La. 1983) (the plaintiff had been convicted of a crime twenty-five years earlier);
Montesano v. Donrey Media Group, 668 P.2d 1081 (Nev. 1983), cert. denied, 466 U.S. 959
(1984) (the plaintiff, a minor twenty years earlier, had been charged with the hit-and-run death
of a police officer). Cf. Werner v. Times-Mirror Co., 14 Cal. Rptr. 208 (Cal. App. 1961) (the
plaintiff, thirty years earlier, had been tried and acquitted of bribery and then disbarred).
37. Ramsey v. Georgia Gazette Publishing Co., 297 S.E.2d 94 (Ga. App. 1982).
38. See, e.g., Worrell Newspapers v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), aff ’d, 469
U.S. 1200 (1985); Cape Publications v. Hitchner, 549 So.2d 1374 (Fla. 1989).
39. See, e.g., Coverstone v. Davies, 239 P.2d 876 (Cal. 1952), cert. denied, 344 U.S. 840
(1952); McNally v. Pulitzer Pub. Co., 532 F.2d 69 (8th Cir. 1976), cert. denied, 429 U.S. 855
(1976).
40. See, e.g., Elmhurst v. Pearson, 153 F.2d 467 (D.C. Cir. 1946).
41. See, e.g., Johnson v. Evening Star Newspaper, 344 F.2d 507 (D.C. Cir. 1965), cert.
denied, 382 U.S. 910 (1965); Miller v. News Syndicate Co., 445 F.2d 356 (2d Cir. 1971).
42. See, e.g., Tucker v. News Publishing Co., 397 S.E.2d 499 (Ga. App. 1990); Batts v.
Capital City Press, Inc., 479 So.2d 534, 536–37 (La. App. 1985).
43. See Valentine v. CBS, 698 F.2d 430 (11th Cir. 1983); Forsher v. Bugliosi, 608 P.2d 716
(Cal. 1980).
44. The leading Supreme Court cases rejecting privacy suits on behalf of rape victims are
discussed in Chapter 29. To the same effect, see WXYZ, Inc. v. Hand, 658 F.2d 420 (6th Cir.
1981); Edmiston v. Time, Inc., 257 F.Supp. 22 (S.D.N.Y. 1966); Hubbard v. Journal Pub. Co.,
368 P.2d 147 (N.M. 1962); Poteet v. Roswell Daily Record, 584 P.2d 1310 (N.M. App. 1978);
Ayers v. Lee Enterprises, 561 P.2d 998 (Or. 1977); Jane Doe v. Sarasota-Bradenton Florida
Television Co., 436 So.2d 328 (Fla. App. 1983). Contra: Nappier v. Jefferson Standard Life Ins.
Co., 322 F.2d 502 (4th Cir. 1963) (clearly overtaken by subsequent decisions and no longer valid).
344 NOTES
45. Jenkins v. Dell Publishing Co., 251 F.2d 447 (3d Cir. 1958), cert. denied, 357 U.S. 921
(1958); Andren v. Knight-Ridder Newspapers, 10 Media L.Rep. 2109 (E.D. Mich. 1984). But
cf. Blount v. TD Publishing Co., 423 P.2d 421 (N.M. 1966) (remanding for trial a challenge by
the wife of a murder victim respecting an article about the murder).
46. See, e.g., Dresbach v. Doubleday & Co., 518 F.Supp. 1285 (D.D.C. 1981); Reece v.
Grissom, 267 S.E.2d 839 (Ga. App. 1980); Strutner v. Dispatch Printing Co., 442 N.E.2d 129
(Ohio App. 1982).
47. Wagner v. Fawcett Publications, 307 F.2d 409 (7th Cir. 1962), cert. denied, 372
U.S. 909 (1963); Mahaffey v. Official Detective Stories, Inc., 210 F.Supp. 251 (W.D. La.
1962); Cordell v. Detective Publications, Inc., 307 F.Supp. 1212 (E.D. Tenn. 1968), aff ’d,
419 F.2d 989 (6th Cir. 1969); Justice v. Belo Broadcasting Corp., 472 F.Supp. 145 (N.D. Tex.
1979).
48. Gruschus v. Curtis Publishing Co., 342 F.2d 775 (10th Cir. 1965) (deceased father);
Maritote v. Desilu Productions, Inc., 345 F.2d 418 (7th Cir. 1965), cert. denied, 382 U.S. 883
(1965) (deceased husband and father); Young v. That Was the Week That Was, 312 F.Supp.
1337 (N.D. Ohio 1969), aff ’d, 423 F.2d 265 (6th Cir. 1970) (deceased ancestor). For citations
to conflicting authorities, a few permitting assertion of a “relational” right to privacy, see Moore
v. Charles B. Pierce Film Enterprises, 589 S.W.2d 489, 491 (Tex. App. 1979).
49. Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir. 1995), cert. denied, 516 U.S. 817
(1995).
50. Capra v. Thoroughbred Racing Ass’n, 787 F.2d 463 (9th Cir. 1986), cert. denied, 479
U.S. 1017 (1986).
51. Times-Mirror Co. v. Superior Court, 244 Cal. Rptr. 556 (Cal. App. 1988), cert.
dismissed, 489 U.S. 1094 (1989).
52. Garner v. Triangle Publications, 97 F.Supp. 546 (S.D.N.Y. 1951). Accord, Hazlitt v.
Fawcett Publications, 116 F.Supp. 538 (D. Conn. 1953) (a fictionalized story); Annerino v. Dell
Publishing Co., 149 N.E.2d 761 (Ill. App. 1958) (a sensationalized story).
53. 297 Pac. 91 (Cal. App. 1931).
54. 483 P.2d 34 (Cal. 1971) (the issue of liability was to be submitted to the jury).
55. 150 Cal. Rptr. 121 (Cal. App. 1978) (the issue of liability was to be submitted to the
jury).
CHAPTER TWENTY-NINE
1. Diaz v. Oakland Tribune, Inc., 188 Cal. Rptr. 762, 765–66 (Cal. App. 1983).
2. Id. at 767.
3. Id. at 767–68.
4. Id. at 771–73.
5. See, e.g., Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1232 (7th Cir. 1993). But the
description must be one of true facts. Satirical treatment of the sex life of a public figure will not
support an action for true fact disclosure. See Leidholdt v. LFP, Inc., 860 F.2d 890 (9th Cir.
1988), cert. denied, 489 U.S. 1080 (1989).
6. Coplin v. Fairfield Public Access Television Committee, 111 F.3d 1395, 1398–1400 (8th
Cir. 1997).
7. Id. at 1405.
8. Id. at 1405–6.
9. Banks v. King Features Syndicate, 30 F.Supp. 352 (S.D.N.Y. 1939) (publication of
a photographic X ray of plaintiff ’s abdomen); Williams v. American Broadcasting Compa-
nies, 96 F.R.D. 658, 669 (W.D. Ark. 1983) (broadcast of a videotape of plaintiff ’s hip
operation). See also Doe v. City of New York, 15 F.3d 264 (2d Cir. 1994), holding that a city
NOTES 345
press release disclosing the HIV status of an identifiable individual violated that person’s
constitutional right to privacy absent a substantial government interest in making the disclo-
sure. See O’Neil (2001) at 82–86, discussing the sensitive nature of information about AIDS
and HIV status.
10. Doe v. Roe, 345 N.Y.S.2d 560 (App. Div. 1973), aff ’d 307 N.E.2d 823 (N.Y. 1973),
cert. dismissed, 420 U.S. 307 (1975), on remand, 400 N.Y.S.2d 668 (Sup. Ct. 1977).
11. Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668
(Tex. 1976), cert. denied, 430 U.S. 931 (1977).
12. Jane Doe v. Edward A. Sherman Pub. Co., 593 A.2d 457 (R.I. 1991).
13. Aquino v. Bulletin Co., 154 A.2d 422 (Pa. Super. 1959).
14. Hall v. Post, 372 S.E.2d 711 (N.C. 1988).
15. Hall v. Post, 355 S.E.2d 819, 822 (N.C. App. 1987), reversed, 372 S.E.2d 711 (N.C.
1988).
16. Revelations by outsiders of relations within a family—e.g., between husband and
wife—have been held to be actionable. Sheets v. Salt Lake City County, 45 F.3d 1383 (10th Cir.
1995), cert. denied, 516 U.S. 817 (1995) (discussed in Chapter 28 at n.49).
17. McCabe v. Village Voice, Inc., 550 F.Supp. 525 (E.D. Pa. 1982); Gallon v. Hustler
Magazine, 732 F.Supp. 322 (N.D.N.Y. 1990); Barrows v. Rozansky, 489 N.Y.S.2d 481 (App.
Div. 1995).
18. Trammell v. Citizens News Co., 148 S.W. 2d 708 (Ky. 1941).
19. Hood v. National Enquirer, 17 Ent. L. Rep. Feb. 1996, 3 (Cal. App. 1996).
20. Harris v. Easton Pub. Co., 483 A.2d 1377 (Pa. Super. 1984). But in Pontbriand v.
Sundlun, 699 A.2d 856 (R.I. 1997), the court rejected privacy claims of bank depositors with
accounts in excess of $100,000. Their names had been released by the governor to facilitate
passage of a banking insurance bill and thereafter had been published by the press.
21. Deaton v. Delta Democrat Pub. Co., 326 So.2d 471 (Miss. 1976). See also Bazemore
v. Savannah Hospital, 155 S.E. 194 (Ga. 1930) (publication of a photograph of a deceased
deformed infant invaded the parents’ right of privacy); Foretich v. Lifetime Cable, 777 F.Supp.
47 (D.D.C. 1991) (a documentary depicting a seven-year-old’s description of child abuse was
held to raise a jury question as to improper true fact disclosure).
22. Hawkins v. Multimedia, Inc., 344 S.E.2d 145 (S.C. 1986), cert. denied, 479 U.S. 1012
(1986). But in Meetze v. Associated Press, 95 S.E.2d 606 (S.C. 1956), a court ruled that the
birth of a child to a very young mother was newsworthy; in any case, the mother’s age was a
matter of public record.
23. See Bilney v. Evening Star Newspaper, 406 A.2d 652, 660 (Md. App. 1979) (discussed
supra in Chapter 28 at n.17).
24. Strickler v. National Broadcasting Co., 167 F.Supp. 68 (S.D. Cal. 1958) (an airline
passenger depicted while praying during an emergency landing); Sutton v. Hearst Corp., 98
N.Y.S.2d 233 (App. Div. 1950) (a fictionalized account of an arrangement by a deceased
serviceman to send a rose each week after his death to a woman for whom he had felt a strong
affection). In each case the court found a triable issue of fact for the jury as to offensiveness.
25. Times-Mirror Co. v. Superior Court, 244 Cal. Rptr. 556 (Cal. App. 1988), cert. denied,
489 U.S. 1094 (1989) (a witness to a murder sued a newspaper that had revealed her identity;
the newsworthiness of the disclosure raised a jury question).
26. Hyde v. City of Columbia, 637 S.W.2d 251 (Mo. App. 1982), cert. denied, 459 U.S.
1226 (1989) (a rape victim had a viable claim against the media for disclosing her identity). The
Hyde case is discussed infra at nn.39, 40.
27. Duran v. Detroit News, 504 N.W.2d 715 (Mich. App. 1993) (a target of foreign
terrorists had no claim against the media for disclosure of her name and address).
346 NOTES
28. Times-Mirror, supra n.25, seems incompatible with Duran, supra n.27. Hyde, supra
n.26, seems incompatible with numerous cases permitting the media to disclose the identities
of rape victims. See infra nn.29–41.
29. 420 U.S. 469 (1975).
30. 491 U.S. 524 (1989).
31. 420 U.S. at 471–75. The Georgia opinion is reported at 200 S.E.2d 127 (Ga. 1973).
It upheld the father’s standing to assert a claim on behalf of his deceased daughter; it also found
a violation of the father’s “right to be let alone, free from and unconnected with the sad and
unpleasant event that had previously occurred.” Id. at 130.
32. 420 U.S. at 491–92, 495–96.
33. See Posner (1981) at 338–39 for a similar critique.
34. 491 U.S. at 526–29.
35. Id. at 533.
36. Id. at 537–41.
37. See Bassey v. Mistrough, 450 N.Y.S.2d 604 (App. Div. 1982).
38. 491 U.S. at 541.
39. 637 S.W.2d 251 (Mo. App. 1982), cert. denied, 459 U.S. 1226 (1983).
40. Id. at 269. The Supreme Court’s decisions in Cox and Florida Star have been viewed as
seriously limiting, if not extinguishing altogether, the possibility of basing claims on public
disclosure of private facts. For a lucid discussion, see Haynes v. Alfred A. Knopf, Inc., discussed
at infra nn.48–53. The action for public disclosure of private facts is criticized in Kalven (1966)
at 333–39; Zimmerman (1983) at 306–27, 337–41.
42. Id. at 274. See also Macon Telegraph Pub. Co. v. Tatum, 436 S.E. 2d 655 (Ga. 1993),
where the court, adopting a case-by-case approach, refused to impose liability for a newspaper’s
identification of a rape victim. In Macon the victim had killed her attacker, thereby becoming a
legitimate object of public attention.
43. Other Supreme Court decisions have precluded the application of criminal sanctions
to truthful reports of official proceedings. See Landmark Communications v. Virginia, 435
U.S. 829 (1978) (identification of a judge subject to state disciplinary proceedings); Smith v.
Daily Mail Publishing Co., 443 U.S. 97 (1979) (identification of a juvenile suspect in a
criminal investigation). See also Oklahoma Publishing Co. v. District Court, 430 U.S. 308
(1977) (striking down a judge’s order barring the identification of juveniles observed in open
court).
44. Accord, Medico v. Time, Inc., 643 F.2d 134, 144 (3d Cir. 1981), cert. denied, 454 U.S.
836 (1981); Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993); Gates v.
Discovery Communications, Inc., 131 Cal. Rptr. 2d 534, 539–46 (Cal. App. 2003) (discussing
the impact of Cox and Florida Star on reports based on public records).
45. 283 N.W.2d 289 (Iowa 1979), cert. denied, 445 U.S. 904 (1980).
46. The court also reasoned that the challenged story was newsworthy and that disclosure
of Howard’s identity was germane; the name provided a personalized frame of reference and
lent “specificity and credibility to the report.” Id. at 303.
47. Compare the approach of the Texas court in Industrial Foundation of the South, dis-
cussed supra at n.11.
48. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1224–26, 1230–32 (7th Cir. 1993).
49. Id. at 1230.
50. Id. at 1231.
51. Id. at 1233.
52. Id. at 1232.
NOTES 347
53. Id.
54. Accord, Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980) (disclosure of details
of Carlyne Campbell’s marriage to Joseph Campbell, incident to the autobiography of Will
Campbell, Joseph’s brother); Dresbach v. Doubleday & Co., 518 F.Supp. 1285 (D.D.C. 1981)
(disclosure of details of a relationship between Lee Dresbach and his brother Wayne, incident
to a book about Wayne’s criminal conviction, imprisonment, and subsequent rehabilitation).
In each case the disclosed details were held to be germane to the author’s subject. See also
Anonsen v. Donahue, 857 S.W.2d 700, 705 (Tex. App. 1993), cert. denied, 511 U.S. 1128
(1994) (rejecting privacy claims for disclosures made on a television talk show); Howell v.
Tribune Entertainment Co., 106 F.3d 215 (7th Cir. 1997) (rejecting a privacy claim for disclo-
sures made on a broadcast talk show). For further discussions of public disclosure of private
facts, see Post (1989) at 978–1008; Zimmerman (1983) at 299–303, 344–65.
55. See Trammell v. Citizens News Co., supra at n.18.
56. See the discussion supra at nn.34–38.
CHAPTER THIRTY
1. Galella v. Onassis, 487 F.2d 986, 991–92, 994 (2d Cir. 1973).
2. Id. at 995.
3. Id. at 998.
4. Galella v. Onassis, 533 F.Supp. 1076 (S.D.N.Y. 1982); N.Y.L.J., Mar. 25, 1982, at 1.
5. 924 F.Supp. 1413 (E.D. Pa. 1996).
6. Id. at 1422–32.
7. Id. at 1432–34.
8. The issue there was false light privacy.
9. Dempsey v. The National Enquirer, 702 F.Supp. 927, 931 (D. Me. 1988).
10. Id. Accord, Lee v. The Columbian, Inc., 826 P.2d 217 (Wash. App. 1991) (a reporter
had made several telephone calls and approached the plaintiff in public places in pursuit of an
interview; a claim of outrage was rejected as frivolous).
11. A private party would have been charged with harassment or stalking.
12. See State v. Lashinsky, 404 A.2d 1121 (N.J. 1979); City of Oak Creek v. King, 436
N.W.2d 285 (Wis. 1989). Compare Pennsylvania v. Chini, 18 Media L.Rep. 1335 (Pa. Com.
Pleas 1990); Westinghouse Broadcasting v. National Transportation Safety Board, 8 Media
L.Rep. 1177 (U.S.D.C. Mass. 1982). Some latitude was accorded reporters in Chini and
Westinghouse in the particular circumstances of those cases. See also Leiserson v. City of San
Diego, 229 Cal. Rptr. 22 (Cal. App. 1986) (applying a state statute applicable to media access
to accident sites). Whether the press should be accorded special privileges is a matter hotly
debated. See Abrams (1979); Lewis (1979); Sack (1979).
13. Risenhoover v. England, 936 F.Supp. 392 (W.D. Tex. 1996).
14. Clift v. Narragansett Television, 688 A.2d 805 (R.I. 1996).
15. United States v. Sanders, 17 F.Supp.2d 141 (E.D.N.Y. 1998), aff ’d, 2000 U.S. App.
Lexis 8808 (2d Cir. 2000). See also United States v. Morison, 844 F.2d 1057, 1068–70 (4th Cir.
1988), cert. denied, 488 U.S. 908 (1988) (a government employee’s theft of photographs for
use by a magazine subjected the employee to criminal sanctions).
16. State v. Cantor, 534 A.2d 83 (N.J. Super. 1987). For further discussions of legal
impediments to news gathering, see Burton (1998); Dienes, Levine, and Lind (1997) at 441–
45, 515–18.
17. See, e.g., Frith v. Associated Press, 176 F.Supp. 671 (E.D.S.C. 1959); Harrison v.
Washington Post Co., 391 A.2d 781 (D.C. 1978). The release of “mug shots” has been required
under federal and state Freedom of Information Acts: Detroit Free Press v. Dept. of Justice, 73
348 NOTES
F.3d 93 (6th Cir. 1996); Detroit Free Press v. Oakland County Sheriff, 418 N.W.2d 124 (Mich.
App. 1987).
18. See Jacova v. Southern Radio & TV Co., 83 So.2d 34 (Fla. 1955); Stafford v. Hayes,
327 So.2d 871 (Fla. App. 1976); cf. Hartman v. Meredith Corp., 638 F.Supp. 1015, 1018 (D.
Kan. 1986) (bail bondsmen were photographed in the company of their arrested clients; their
privacy claim was rejected).
19. See Leverton v. Curtis Publishing Co., 192 F.2d 974 (3d Cir. 1951) (a picture of an
accident victim, shown in connection with a story about the accident, was privileged as news-
worthy); Anderson v. Fisher Broadcasting Cos., 712 P.2d 803 (Ore. 1986) (same); Rozhon v.
Triangle Publications, 230 F.2d 359 (7th Cir. 1956) (same as to a pre-accident photo of the
deceased); Jones v. Herald Post Co., 18 S.W.2d 972 (Ky. 1929) (same as to a photograph of the
survivor of an assault).
20. See Samuel v. Curtis Publishing Co., 122 F.Supp. 327 (N.D. Cal. 1954) (plaintiff ’s
picture was taken while he was attempting to dissuade a woman from jumping off a bridge).
21. See Berg v. Minneapolis Star & Tribune Co., 79 F.Supp. 957 (D. Minn. 1948) (it was
irrelevant whether a divorce litigant’s picture was taken inside or outside the courtroom);
Heath v. Playboy Enterprises, 732 F.Supp. 1145 (S.D. Fla. 1990) (pictures of litigants were
taken outside the courthouse).
22. See, e.g., Estill v. Hearst Publishing Co., 186 F.2d 1017 (7th Cir. 1951) (prosecuting
attorney); Ross v. Burns, 612 F.2d 271 (6th Cir. 1980) (undercover narcotics officer).
23. See Humiston v. Universal Film Mfg. Co., 178 N.Y.Supp. 752 (App. Div. 1919)
(newsreel pictures of a female attorney who had helped solve a murder); cf. Floyd v. Park Cities
People, 685 S.W.2d 96 (Tex. App. 1985) (a picture of a man and his front yard; the yard’s
unkempt condition had been a matter of public controversy).
24. See Jackson v. Playboy Enterprises, 574 F.Supp. 10 (S.D. Ohio 1983) (a picture of
small boys watching a female police officer assist them in fixing a bicycle; the same officer
appeared nude in adjacent photos); Themo v. New England Newspaper Pub. Co., 27 N.E.2d
753 (Mass. 1940) (a picture of a person conversing with a chief of police).
25. See Abernathy v. Thornton, 83 So.2d 235 (Ala. 1955) (picture of the deceased in his
coffin in the funeral parlor); Metter v. Los Angeles Examiner, 95 P.2d 491 (Cal. App. 1939)
(picture of a suicide victim taken prior to the suicide).
26. See, e.g., Waters v. Fleetwood, 91 S.E.2d 344 (Ga. 1956) (a gruesome picture of a
child’s body, decomposed in part); Bremmer v. Journal-Tribune Publishing Co., 76 N.W.2d 762
(Iowa 1956) (a picture of the body of an eight-year-old, mutilated and partially decomposed).
27. Occasionally, a court will provide redress when a picture, newsworthy when taken, is
shown in connection with an unrelated story. See Leverton v. Curtis Publishing Co., 192 F.2d
974, 978 (3d Cir. 1951).
28. See Taylor v. KTVB, Inc., 525 P.2d 984 (Ida. 1974) (a nude man was taken into custody
after brandishing a shotgun in his apartment).
29. See Cape Publications v. Bridges, 423 So.2d 426 (Fla. App. 1982), cert. denied, 464
U.S. 893 (1983) (the escaping victim was photographed clutching a dish towel to conceal her
nude body).
30. Gill v. Hearst Publishing Co., 253 P.2d 441 (Cal. 1953).
31. Id. at 444–45.
32. Id. at 446 (dissenting opinion). For a similar disposition, see De Gregorio v. CBS, Inc.,
473 N.Y.S.2d 922 (Sup. Ct. 1984). In a segment, “Couples in Love in New York,” CBS
broadcast a film of the plaintiff walking hand in hand with a female coworker, both of them
wearing hard hats. Each was married or engaged to another. Held, for CBS. See also Arrington
v. New York Times Co., 434 N.E.2d 1319 (N.Y. 1982), cert. denied, 459 U.S. 1146 (1983).
NOTES 349
33. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La. 1979). Accord, Wehling v.
Columbia Broadcasting System, 721 F.2d 506 (5th Cir. 1983) (a televised picture of the
plaintiff ’s residence was taken from the street; the plaintiff had been accused of fraud).
34. Fogel v. Forbes, Inc., 500 F.Supp. 1081 (E.D. Pa. 1980).
35. McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901 (Tex. App. 1991). Accord,
Neff v. Time, Inc., 406 F.Supp. 858 (W.D. Pa. 1976) (a picture of a football fan, taken with his
consent, showed him with his fly open). Contra: Daily Times Telegraph v. Graham, 162 So.2d
474, 478 (Ala. 1964) (a woman’s skirt had blown above her waist on exiting a fun house; the
court sustained a recovery for publication of a photograph, rejecting the idea “that one who is
involuntarily and instantaneously enmeshed in a[n] embarrassing pose forfeits her right of
privacy merely because she happened at the moment to be part of a public scene”).
36. Pierson v. News Group Publications, Inc., 549 F.Supp. 635 (S.D. Ga. 1982). Accord,
Truxes v. Kenco Enterprises, 119 N.W.2d 914 (S.D. 1963) (an on-the-job picture of a sixty-
nine-year-old postal employee was taken with the permission of the postmaster in charge; it was
used in connection with an article about the elderly).
37. Cox Communications, Inc. v. Lowe, 328 S.E.2d 384 (Ga. App. 1985), cert. denied,
474 U.S. 982 (1985). Accord, Huskey v. Dallas Chronicle, 13 Media L.Rep. 1057 (D. Ore.
1986) (a picture of a prisoner being booked into a state prison); Holman v. Central Arkansas
Broadcasting Co., 610 F.2d 542 (8th Cir. 1979) (an intoxicated prisoner, behaving in a boister-
ous manner, was recorded by a reporter; the recording was subsequently broadcast). Contra:
Huskey v. National Broadcasting Co., 632 F.Supp. 1282 (N.D. Ill. 1986) (a prisoner stated a
viable claim as regards the broadcast of a video picture taken of him, in violation of prison
regulations, in an exercise cage wearing only gym shorts; the fact that plaintiff was visible to
some people did not strip him of the right to be secluded from others).
38. 253 P.2d 441 at 446 (dissenting opinion).
39. 802 S.W.2d at 905.
40. 328 S.E.2d at 385.
41. 538 F.Supp. 1364 (S.D.N.Y. 1982), aff ’d in pertinent part, 801 F.2d 46 (2d Cir. 1986).
42. 538 F.Supp. at 1368.
43. Id. at 1369.
44. Id. at 1374.
45. Id.
46. 801 F.2d at 57–58.
47. In Brooks v. American Broadcasting Companies, 737 F.Supp. 431 (N.D. Ohio 1990),
aff ’d in pertinent part, 932 F.2d 495 (6th Cir. 1991), the court sustained an “ambush interview”
on a public street against a challenge based on the federal wiretap statute, 18 U.S.C. § 2511.
48. Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460, 462–63 (9th Cir.
1997), cert. denied, 523 U.S. 1137 (1998).
49. 121 F.3d at 465.
50. See Shulman v. Group W Productions, Inc., 955 P.2d 469 (Cal. 1998) (repudiating the
reasoning on which the Deteresa opinion relied). Accord, Sanders v. American Broadcasting
Cos., 978 P.2d 67 (Cal. 1999); Alpha Therapeutic Corp. v. Nippon Hoso Kyokai, 199 F.3d
1078 (9th Cir. 1999), settled by stipulation, 237 F.3d 1007 (9th Cir. 2001) (the facts here were
almost identical to Deteresa). Shulman is discussed infra in Chapter 31 at nn.18–24. Sanders and
Alpha Therapeutic are discussed infra in Chapter 33 at n.36.
51. 121 F.3d at 467.
52. Id. at 466.
53. See Note, Privacy, Photography and the Press (1998) at 1086 n.6.
54. See H.R. 2448, 105th Cong. (1997) (introduced by Congressman Sonny Bono).
350 NOTES
55. See Note, Privacy, Photography and the Press (1998) at 1091. For a more carefully
formulated proposal, see McClurg (1995) at 1057–85.
56. See Regan v. Time, Inc., 468 U.S. 641, 648–49 (1984) (photographs are protected by
the First Amendment); Burnham v. Ianni, 119 F.3d 668, 674 (8th Cir. 1997) (photographs
expressive of a message are protected by the First Amendment).
57. See Note, Privacy, Photography and the Press (1998) at 1092–93. The author argues
that photography should receive extensive First Amendment protection. Id. at 1094–1103.
58. Galella v. Onassis and Wolfson v. Lewis, supra nn.1–7.
59. Machleder v. Diaz and Deteresa v. American Broadcasting Companies, Inc., supra nn.48–
52. For detailed discussions, see Dienes, Levine, and Lind (1997) at 430–41, 463–66, 559–
62.
CHAPTER THIRTY-ONE
1. Miller v. National Broadcasting Company, 232 Cal. Rptr. 668, 673–74 (Cal. App.
1986).
2. Id. at 685.
3. KOVR-TV v. Superior Court, 37 Cal. Rptr.2d 431, 432–34 (Cal. App. 1995).
4. Id. at 434 (internal quotes omitted).
5. Anderson v. WROC-TV, 441 N.Y.S.2d 220 (Sup. Ct. 1981).
6. Id. at 223–24. Accord, Rogers v. Buckel, 615 N.E.2d 669 (Ohio App. 1992) (a television
crew accompanied the police on a drug raid; they taped pictures of a mother and her four
children, present by happenstance, and aired the tape). Compare Magenis v. Fisher Broadcast-
ing, 798 P.2d 1106, 1110 (Ore. 1990), suggesting a more flexible approach under similar
circumstances.
7. 441 N.Y.S.2d at 226. Accord, Green Valley School, Inc. v. Cowles Florida Broadcast-
ing, Inc., 327 So.2d 810 (Fla. App. 1976) (media representatives accompanied law enforce-
ment officers on a nighttime raid on a boarding school). In some instances courts have found
consent to the entry of news personnel: Florida Publishing Co. v. Fletcher, 340 So.2d 914
(Fla. 1976), cert. denied, 431 U.S. 930 (1977) (based on custom and usage); Reeves v. Fox
Television Network, 983 F.Supp. 703 (N.D. Ohio 1997) (based on an occupant’s failure to
object).
8. Ayeni v. CBS, 848 F.Supp. 362 (E.D.N.Y. 1994), aff ’d sub nom. Ayeni v. Mottola, 35 F.3d
680 (2d Cir. 1994), cert. denied, 514 U.S. 1062 (1995) (CBS settled prior to the appeal; the
court’s opinion was concerned solely with the liability of the government agents). The Supreme
Court adopted the Ayeni approach in Wilson v. Layne, 526 U.S. 603 (1999). Federal law
enforcement officers permitted members of the press to accompany them in executing a search
warrant. The intrusion by the press violated the Fourth Amendment and exposed the federal
officers to civil liability. Liability was not imposed in this case, however, because the prior law
had been unclear on this point, affording the officers a qualified immunity from civil liability.
For more on this point, see Chapter 33 infra at nn.37–38.
9. 848 F.Supp. at 368. But see Parker v. Boyer, 93 F.3d 445 (8th Cir. 1996), cert. denied,
519 U.S. 1148 (1997), a contrary opinion based on spurious reasoning. For cites to commen-
tators arguing in favor of a news-gathering privilege enabling reporters to trespass, see Lidsky
(1998) at 194 n.100.
10. Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942).
11. Id. at 295–96. Accord, Doe v. B.P.S. Guard Services, 945 F.2d 1422 (8th Cir. 1991).
Twelve female models were watched and videotaped while changing clothes in a dressing area.
The tape, in redacted form, was later shown on local television. Each model recovered $36,000
in compensatory and punitive damages.
NOTES 351
12. Y.G. & L.G. v. Jewish Hospital of St. Louis, 795 S.W.2d 488 (Mo. App. 1990).
Accord, Rafferty v. Hartford Courant Co., 416 A.2d 1215 (Conn. Super. 1980).
13. 402 N.Y.S.2d 815 (App. Div. 1978). On similar facts, a court reached a contrary
conclusion when a jury found that the restaurateur had consented to the presence of news
personnel. Belluomo v. KAKE-TV, 596 P.2d 832 (Kan. App. 1979).
14. 665 P.2d 839 (Okla. Crim. App. 1983), cert. denied, 464 U.S. 1069 (1984). Accord on
similar facts, State v. McCormack, 682 P.2d 742 (N.M. App. 1984).
15. 295 N.W.2d 768 (Wis. App. 1980). See also Howell v. New York Post, 612 N.E.2d
699 (N.Y. 1993).
16. Mark v. The Seattle Times, 635 P.2d 1081 (Wash. 1981), cert. denied, 457 U.S. 1124
(1982).
17. Id. at 1094.
18. Shulman v. Group W Productions, Inc., 955 P.2d 469, 475–77 (Cal. 1998).
19. Id. at 488.
20. Id. at 503 (dissenting opinion).
21. Id. at 490.
22. Id. at 490–92.
24. Id. at 495–96 and n.18 (internal quotes omitted). For further discussions of news
gathering in private places, see Dienes, Levine, and Lind (1997) at 446–63, 466–83; Lidsky
(1998) at 194–95, 203–17, 239–47.
25. Cal. Civil Code 1708.8. For a careful analysis of the statute, see Note, Privacy, Technol-
ogy, and the California “Anti-Paparazzi” Statute (1999) at 1382–84.
26. See Aisenson v. American Broadcasting Co., 269 Cal. Rptr. 379, 388 (Cal. App. 1990),
finding that there was no unreasonable intrusion by a photographer who took plaintiff ’s picture
from a public place while the plaintiff was on private property (his driveway), although the
photographer may have used a telephoto lens. A similar result was reached in Saldana v. Kelsey-
Hayes Co., 443 N.W.2d 382 (Mich. App. 1989), a much more troublesome case; a private
investigator used a telephoto lens to peer through a window.
27. Foster v. Livingwell Midwest, 865 F.2d 257 (6th Cir. 1988) (not officially published but
reproduced at 1988 U.S. App. Lexis 17106). Accord, Sweenek v. Pathe News, 16 F.Supp. 746
(E.D.N.Y. 1936) (a newsreel showed a fat woman exercising in a gym on a unique apparatus for
the purpose of losing weight; the display was held not to be a violation of New York’s privacy
statute).
28. Borton v. Unisys Corp., 1991 U.S. Dist. Lexis 93 (E.D. Pa. 1991) (the court also
rejected an action for intentional infliction of emotional distress, but it set for trial a claim that
Borton had been portrayed in a false light).
29. Solomon v. National Enquirer, Inc., 24 Media L.Rep. 2269, 2272 (D. Md. 1996).
30. Nimmer and Nimmer (2001) §§ 4.02, 9.09[A].
31. Id. at 5.04.
32. See Bianco v. ABC, 470 F.Supp. 182, 185 (N.D. Ill. 1979); Amati v. City of Woodstock,
1996 U.S. Dist. Lexis 8306 (N.D. Ill. 1996). Both implement the plain terms of the federal
wiretap statute (which also covers electronic eavesdropping). See 18 U.S.C. §§ 2510, 2511.
33. See, e.g., Shulman v. Group W Productions, Inc., supra at Chapter 30, n.50, and cases
there discussed.
34. Aubry v. Editions Vice-Versa Inc., [1998] 1 S.C.R. 591, 613–15 (Can.). A dissenting
opinion agreed with the majority that Aubry’s right to privacy had been violated, but it con-
cluded that Aubry had failed to prove compensable harm.
35. See Posner (1981) at 257–60.
352 NOTES
CHAPTER THIRTY-TWO
1. Cohen v. Cowles Media Co., 501 U.S. 663, 665–66 (1991).
2. Cohen v. Cowles Media Co., 457 N.W.2d 199 (Minn. 1990).
3. 501 U.S. at 669.
4. Id. at 670–71. For a comprehensive discussion of the “incidental burdens” test, see Dorf
(1996) at 1200–10, 1243–45.
5. Id. at 671. For an earlier Supreme Court decision enforcing a promise to respect
confidentiality, see Snepp v. United States, 444 U.S. 507 (1980), discussed in Chapter 34.
6. 485 U.S. 46 (1988).
7. 501 U.S. at 671.
8. Cohen v. Cowles Media Co., 479 N.W.2d 387 (Minn. 1992).
9. Commonwealth v. Wiseman, 249 N.E.2d 610 (Mass. 1969), cert. denied, 398 U.S. 960
(1970).
10. Id. at 616–17. A federal court reached a contrary conclusion in Cullen v. Grove Press,
276 F.Supp. 727 (S.D.N.Y. 1967).
11. Ruzicka v. Conde Nast Publications, 999 F.2d 1319 (8th Cir. 1993). A prior opinion to
the same effect is reported at 939 F.2d 578 (8th Cir. 1991).
12. Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491 (Ga. App. 1994). Accord, Ander-
son v. Strong Memorial Hospital, 573 N.Y.S.2d 828 (Sup. Ct. 1991) (a photograph of an AIDS
patient was published without the promised concealment of identity).
13. Veilleux v. National Broadcasting Co., 206 F.3d 92, 126–28 (1st Cir. 2000).
14. Jane Doe v. Univision Television Group, 717 So.2d 63 (Fla. App. 1998).
15. See Wildmon v. Berwick Universal Pictures, 803 F.Supp. 1167 (N.D. Miss. 1992)
(Wildmon claimed a right to control exhibition of a television interview he had given).
16. See O’Connell v. Housatonic Valley Publishing Co., 1991 Conn. Super. Lexis 2749
(1991) (O’Connell had been named as the source of a story despite a promise to withhold her
identity).
17. See Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460 (9th Cir. 1997),
cert. denied, 523 U.S. 1137 (1998).
18. The pertinent precedents are cited infra in Chapter 34 at nn.1–2, 8–10.
19. A comprehensive discussion of the episode is provided in Grossman (1996). See also
Kirtley (1996) at 1099–1107; O’Neil (1996) at 1006, 1016–18.
20. Huggins v. Povitch, 24 Media L.Rep. 2040, 2047 (N.Y. Sup. Ct. 1996).
21. 278 N.W.2d 81 (Minn. 1979).
22. Id. at 94. Accord, Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175,
1185 (Pa. 1978), cert. denied, 442 U.S. 907 (1979).
23. See, e.g., Uncle B’s Bakery, Inc. v. O’Rourke, 920 F.Supp. 1405 (N.D. Iowa 1996). For
a rare case protecting trade secrets from infringement by a media recipient, see Lynch, Jones &
Ryan, Inc. v. Standard & Poor’s, 1998 N.Y. Misc. Lexis 334 (N.Y. Sup. Ct. 1998). Another
unusual case invalidated a prior restraint on media publication of a trade secret under a state
constitutional free speech provision: State ex rel. Sports Management News v. Nachtigal, 921
P.2d 1304 (Ore. 1996). On prior restraints in intellectual property cases, see Lemley and
Volokh (1998).
24. See Garfield (1998) at 306–12.
25. ALI, Restatement (Second) of Torts (1979) § 774 comment b. Accord, Gold v. Wolpert,
876 F.2d 1327, 1331–32 (7th Cir. 1989) (an invalid real estate brokerage contract); Colorado
Accounting Machines v. Mergenthaler, 609 P.2d 1125 (Colo. App. 1980) (an invalid restrictive
covenant); Schwegmann v. Schwegmann, 441 So.2d 316, 325–26 (La. App. 1983), cert. de-
nied, 467 U.S. 1206 (1984) (a concubinage contract in violation of public policy). Other
NOTES 353
contracts, although unenforceable for reasons other than illegality (e.g., the absence of a
writing), are protected nonetheless against outside inducements of breach. Restatement, supra
§ 754.
26. See, e.g., Epstein (1995) § 2.03; Milgrim (1999) §§ 2:702[2], 2:702[3].
27. See Harper & Row v. Nation Enterprises, 471 U.S. 539, 555, 564 (1985); Salinger
v. Random House, Inc., 811 F.2d 90, 95–97 (2d Cir. 1987), cert. denied, 484 U.S. 890
(1987). Damages were awarded in Harper & Row; a preliminary injunction was sustained in
Salinger. Both rebuffed First Amendment claims by the publisher-defendants. See Hamel
(1985).
28. See nn.26–28 supra.
29. The justifications are summarized in ALI, Restatement (Second) of Torts (1977) §§
767–74.
30. Lachman v. Sperry–Sun Well Surveying Co., 457 F.2d 850 (10th Cir. 1972).
31. Id. at 853. Accord, Willig v. Gold, 171 P.2d 754, 757 (Cal. App. 1946); McGrane v.
Reader’s Digest Ass’n, 822 F.Supp. 1044, 1051–52 (S.D.N.Y. 1993).
32. ALI, Restatement (Third) of Unfair Competition (1995) § 40 comment c. Accord,
Restatement (Second) of Agency (1958) § 395 comment f. But cf. Merckle GmbH v. Johnson
& Johnson, 961 F.Supp. 721, 733–34 (D.N.J. 1997) (ruling that a disclosure was not privileged
in litigation serving a private commercial interest that “did not further a substantial public
interest”). See also Anderson (1997) (advocating immunity to suit for inducement to breach a
contract in the absence of fraud, coercion, or breach of fiduciary duty); Baron, Lane, and
Schultz (1996) (also advocating a broad immunity).
33. Of course, Brown and Williamson’s attorneys may be bound by the attorney-client
privilege in at least some circumstances.
34. See, generally, Dienes, Levine, and Lind (1997) at 534–58, 562–66; Garfield (1998) at
324–43, 358–64.
35. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225–27 (6th Cir. 1996)
(publication by Business Week magazine); Ford Motor Co. v. Lane, 67 F.Supp.2d 745 (E.D.
Mich. 1999) (publication by an individual on an Internet website).
36. 18 U.S.C. § 1832. In addition, the attorney general is authorized to seek appropriate
injunctive relief against violations.
37. 18 U.S.C. § 1833.
CHAPTER THIRTY-THREE
1. Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).
2. Id. at 245–46.
3. Id. at 249.
4. Id.
5. Id. at 250. Dietemann is discussed in Logan (1997) at 175–77.
6. Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1347–49 (7th Cir.
1995) (by Chief Judge Posner).
7. Id. at 1351–52.
8. Id. at 1352–53.
9. Id. at 1353.
10. Id. at 1353–54. On this feature of wiretapping statutes, see Greenawalt (1968); Smith
(1992).
11. Id. at 1354–55.
12. Id.
13. Id. Desnick is discussed in Logan (1997) at 177–80. See also Logan (1998).
354 NOTES
14. Baugh v. CBS, Inc., 828 F.Supp. 745 (N.D. Cal. 1993).
15. Copeland v. Hubbard Broadcasting, 1997 Minn. App. Lexis 1276 (1997). Accord,
Shiffman v. Empire Blue Cross & Blue Shield, 681 N.Y.S.2d 511 (App. Div. 1998) (a reporter
gained access to a private medical office with false credentials).
16. Dickerson v. Sally Jessy Raphael, 564 N.W.2d 85 (Mich. App. 1997), reversed on other
grounds, 601 N.W.2d 108 (Mich. 1999).
17. Boddie v. American Broadcasting Companies, Inc., 881 F.2d 267 (6th Cir. 1989), cert.
denied, 493 U.S. 1028 (1990). See also the earlier opinion at 731 F.2d 333 (6th Cir. 1984).
18. 8 Media L.Rep. 1384 (U.S.C.D. Cal. 1982).
19. Id. at 1386 (emphasis in original). Accord, Ault v. Hustler Magazine, 13 Media L.Rep.
2232, 2234 (D. Ore. 1987), aff ’d in pertinent part, 860 F.2d 877, 882–83 (9th Cir. 1988), cert.
denied, 489 U.S. 1080 (1989) (a photograph and information were obtained from a third party
by a misrepresentation).
20. McCall v. Courier Journal, 6 Media L.Rep. 1112 (Ky. App. 1980), reversed on other
grounds, 623 S.W.2d 882 (Ky. 1981), cert. denied, 456 U.S. 975 (1982).
21. Matter of Medical Laboratory Consultants, 931 F.Supp. 1487 (D. Ariz. 1996). Cf.
WCH of Waverly v. Meredith Corp., 13 Media L.Rep. 1648 (U.S.W.D. Mo. 1986). A televi-
sion reporter, doing a story on a hospital, posed as a patient and secretly videotaped conversa-
tions with the hospital staff. The court found triable issues as to fraud and illegal wiretapping,
but it rejected claims for intrusion and intentional infliction of emotional distress. The latter
claims, the court ruled, could not be asserted by corporations.
22. Russell v. American Broadcasting Companies, Inc., 1995 U.S. Dist. Lexis 7528, 23
Media L.Rep. 2428 (N.D. Ill. 1995).
23. The major opinions are Food Lion, Inc. v. Capital Cities/ABC, Inc., 887 F.Supp. 811
(M.D.N.C. 1995); 951 F.Supp. 1211 (M.D.N.C. 1996); 951 F.Supp. 1224 (M.D.N.C. 1996);
964 F.Supp. 956 (M.D.N.C. 1997); 984 F.Supp. 923 (M.D.N.C. 1997). For discussions of Food
Lion, see Kirtley (1996) at 1097–99; LeBel (1996); Logan (1997) at 180–88; O’Neil (1996) at
1022–24; Schein (1998); Sims (1997, 1998).
24. 887 F.Supp. at 812–16; 964 F.Supp. at 966; 984 F.Supp. at 927.
25. 984 F.Supp. at 931–40.
26. 485 U.S. 46 (1988), discussed in Chapters 12 and 17.
27. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 515–19 (4th Cir. 1999).
28. Id. at 522–24.
29. Id. at 512–14. It also found no violation of the North Carolina Unfair and Deceptive
Trade Practices Act. Id. at 519–20.
30. Id. at 512.
31. Id. at 513–14.
32. Id. at 514 n.2.
33. Id. at 521.
34. Daniel Boone Complex v. Furst, 258 S.E.2d 379, 386 (N.C. App. 1979), discussed
disingenuously by the Food Lion majority at 514 n.1 and more honestly by the dissent at 526.
35. Special Force Ministries v. WCCO T.V., 584 N.W.2d 789 (Minn. App. 1998).
36. Sanders v. American Broadcasting Companies, 978 P.2d 67, 71–77 (Cal. 1999). For
other cases arising out of the same investigation, see Kersis v. Capital Cities/ABC, 22 Media
L.Rep. 2321 (Cal. Super. 1994); Kersis v. American Broadcasting Companies, Inc., 25 Media
L.Rep. 1701, 103 F.3d 139 (9th Cir. 1996). The Kersis cases also found that plaintiffs had raised
triable issues. See also Alpha Therapeutic Corp. v. Nippon Hoso Kyokai, 199 F.3d 1078 (9th
Cir. 1999), settled by stipulation, 237 F.3d 1007 (9th Cir. 2001) (a triable invasion of privacy
occurred when a reporter surreptitiously recorded and videotaped an interview).
NOTES 355
37. Berger v. Hanlon, 129 F.3d 505, 507–14 (9th Cir. 1997), cert. denied as regards CNN,
525 U.S. 961 (1998). As regards the government agents, the Supreme Court reversed on a
theory of qualified immunity, a theory not available to nongovernmental entities. Hanlon v.
Berger, 526 U.S. 808 (1999), is a companion case to Wilson v. Layne, 526 U.S. 603 (1999),
discussed in Chapter 31 supra at n.8.
38. 848 F.Supp. 362 (E.D.N.Y. 1994), aff ’d sub nom. Ayeni v. Mottola, 35 F.3d 680 (2d Cir.
1994), cert. denied, 514 U.S. 1062 (1995). The Ayeni case is discussed in Chapter 31 supra at
n.8.
39. 129 F.3d at 514.
40. Id. at 517–18.
41. Id. at 518.
42. 449 F.2d 245 (9th Cir. 1971), discussed supra at nn.1–3.
CHAPTER THIRTY-FOUR
1. New York Times Co. v. United States, 403 U.S. 713 (1971). For a history of the
Pentagon Papers case, see Rudenstine (1996).
2. 403 U.S. at 714 (1971).
3. See Rudenstine (1998) at 1292–93.
4. See 403 U.S. at 714–20 (Justice Douglas concurring); 720–24 (Justice Black concur-
ring); 726–27 (Justice Brennan concurring).
5. Id. at 752–59 (Justice Harlan dissenting).
6. Id. at 735–37 (Justices White and Stewart concurring); 745 (Justice Marshall concur-
ring); 752 (Chief Justice Berger dissenting); 759 (Justice Blackmun dissenting).
7. See Rudenstine (1996) at 341–42.
8. See, e.g., Near v. Minnesota, 283 U.S. 697 (1931); Nebraska Press Ass’n v. Stuart, 427
U.S. 539 (1976); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
9. See the following from the opinions in the Pentagon Papers case: 403 U.S. at 726–27
(Justice Brennan concurring) (proof is required “that publication must inevitably, directly and
immediately cause [harm] kindred to imperiling the safety of a transport already at sea”); 403
U.S. at 730 (Justices Stewart and White concurring) (the disclosure must “surely result in
direct, immediate and irreparable damage to our Nation or its people”).
10. See CBS v. Davis, 510 U.S. 1315, 114 S. Ct. 912, 913–14 (1994) (Justice Blackmun
staying a lower court injunction against a broadcast of information allegedly obtained illegally);
Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225–27 (6th Cir. 1996) (castigating
a lower court for enjoining a publication while it inquired into the legality of the publisher’s
procurement of information). The Davis and Procter & Gamble cases are discussed in Kirtley
(1996) at 1085–96.
11. Snepp v. United States, 444 U.S. 507 (1980). Accord, United States v. Marchetti, 466
F.2d 1309 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972) (enforcing a similar Central
Intelligence Agency agreement by injunction); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362
(4th Cir. 1975), cert. denied, 421 U.S. 908, 992 (1975) (a subsequent opinion in Marchetti);
McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983) (issuing a declaratory judgment that CIA-
classified material was properly classified).
12. Id. at 510 n.3. Accord, United States v. Aguilar, 515 U.S. 593, 605–6 (1995) (a judge’s
disclosure of confidential information, in violation of a statutory prohibition, is punishable
notwithstanding the First Amendment). The confidential information in Aguilar was not cov-
ered by any agreement.
13. 444 U.S. at 512.
14. Id. at 513 n.8.
356 NOTES
15. 408 U.S. 665 (1972).

16. Id. at 690–91. Accord, Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“The right to speak and
publish does not carry with it the unrestrained right to gather information”).
17. 417 U.S. 817 (1974).
18. Id. at 834–35. Accord, Saxbe v. Washington Post Co., 417 U.S. 843 (1974) (upholding a
similar regulation limiting access to federal prisoners); Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978) (denying access to the physical embodiment of the “Nixon tapes”). For a
general consideration of access by the press to domains under government control, see Dyk (1992).
19. See Houchins v. KQED, Inc., 438 U.S. 1 (1978); Westinghouse Broadcasting v.
National Transportation Board, 8 Media L.Rep. 1177 (U.S.D.C. Mass. 1982). Houchins af-
forded the press some special latitude in access to prisoners. Westinghouse afforded the press
enhanced access to an accident site. On the latter, see supra Chapter 30 at n.12.
20. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) (access to the trial); Press-
Enterprise Co. v. Superior Court (I), 464 U.S. 501 (1984) (access to the jury selection process);
Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986) (access to preliminary hearings).
21. Seattle Times v. Rhinehart, 467 U.S. 20 (1984).
22. Id. at 37 and at 32 n.18, quoting from Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 n.21
(1981), and citing additional authorities.
23. See Shevin v. Sunbeam Television Corp., 351 So.2d 723 (Fla. 1977), appeal dismissed,
435 U.S. 920 (1978).
24. United States v. Riggs, 743 F.Supp. 556 (N.D. Ill. 1990).
25. Id. at 559.
26. Pfeiffer v. Central Intelligence Agency, 1994 U.S. Dist. Lexis 2650 (D.D.C. 1994),
aff ’d, 60 F.3d 861 (D.C. Cir. 1995).
27. Id. at 21–22.
28. 435 U.S. 829 (1978).
29. 443 U.S. 97 (1979).
30. Id. at 103–4.
31. 420 U.S. 469 (1975).
32. 491 U.S. 524 (1989).
33. Id. at 536. See also Nicholson v. McClatchy Newspapers, 223 Cal. Rptr. 58, 61 (Cal.
App. 1986) (violation of a statute by a source does not preclude truthful publication); Lence v.
Hagadone Investment Co., 853 P.2d 1230 (Mont. 1993) (a breach of confidence by a source
does not preclude truthful publication); Scheetz v. The Morning Call, 747 F.Supp. 1515 (E.D.
Pa. 1990), aff ’d, 946 F.2d 202 (3d Cir. 1991), cert. denied, 502 U.S. 1095 (1992) (same). But
see Larsen v. Philadelphia Newspapers, 543 A.2d 1181, 1187–88 (Pa. Super. 1988), cert.
denied, 489 U.S. 1096 (1989) (remanding a case for trial on whether a newspaper had gained
access to confidential information by illegal behavior). In each instance the alleged illegality was
an unauthorized leak from a government source.
34. 410 F.2d 701, 703–4 (D.C. Cir. 1969), cert. denied, 395 U.S. 947 (1969).
35. Id. at 704–5.
36. Id. at 705–6.
37. Natoli v. Sullivan, 606 N.Y.S.2d 504, 505–6 (Sup. Ct. 1993), aff ’d, 616 N.Y.S.2d 318
(App. Div. 1994), applying 18 U.S.C. § 2511(1)(c).
38. 606 N.Y.S.2d at 509.
39. Boehner v. McDermott, 191 F.3d 463, 467 (D.C. Cir. 1999), reversed and remanded,
532 U.S. 1050 (2001), remanded to the trial court, 2001 U.S. App. Lexis 27798 (D.C. Cir.
2001) (quoting 18 U.S.C.A. § 2511(1)(c)). See text following nn.53 and 58 infra for an
explanation of the remands.
NOTES 357
40. Id. at 467–69.

41. Id. at 469–70.
42. Id. at 476.
43. Id. at 479–80 (concurring opinion of Judge Ginsburg).
44. Bartnicki v. Vopper, 532 U.S. 514, 518–19 (2001).
45. Id. at 517–52.
46. Id. at 525.
47. Id. at 533–34.
48. Id. at 525 n.8.
49. Id. at 529.
50. Id. at 529–32.
51. Id. at 541, 549–53 (dissenting opinion of Chief Justice Rehnquist).
52. Id. at 532 n.20.
53. Id. at 535–41 (concurring opinion of Justice Breyer).
54. Bartnicki v. Vopper, 200 F.3d 109, 126–27 (3d Cir. 1999) (dissenting opinion of Judge
Santello).
55. See Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979). The standard was
reiterated and applied in Florida Star v. B.J.F., 491 U.S. 524, 533–42 (1989). See Chapter 29
for further discussion on this point. For a general discussion of illicit sources, see Dienes,
Levine, and Lind (1997) at 498–512, 523–34.
56. 221 F.3d 158 (5th Cir. 2000).
57. Id. at 180, 189–90, 193.
58. Bartnicki v. Vopper, 532 U.S. 514, 522 n.5. For comprehensive discussions of the need for
protection of news gathering, see Chermerinsky (2000); Kirtley (1996, 2000); Lidsky (1998);
O’Neil (1996); O’Neil (2001) at 74–106 (incorporating much of the earlier discussion).
CHAPTER THIRTY-FIVE
1. Jones v. E. Hulton & Sons, [1909] 2 K.B. 444, 445–46, 451–53, aff ’d, [1910] A.C. 20.
2. [1910] A.C. at 24.
3. Dall v. Time, Inc., 300 N.Y.Supp. 680, 681 (App. Div. 1937), aff ’d, 16 N.E.2d 297 (N.Y.
1938).
4. Id. at 685.
5. 429 A.2d 251 (Md. App. 1981), reversed on other grounds, 442 A.2d 966 (Md. 1982).
6. Id. at 256, 260–62.
7. Id. at 262.
8. Id. at 265–66.
9. Hoppe v. Hearst Corp., 770 P.2d 203, 205 (Wash. App. 1989).
10. Id. at 206–7.
11. Id. at 208.
12. Mendoza v. Gallup Independent Co., 764 P.2d 492, 494–96 (N.M. App. 1988) (a city
councilor was mentioned, in an obviously fictitious column, as possibly connected with the
Mexican Mafia; the reference was dismissed as “rhetorical hyperbole”); Lane v. Arkansas Valley
Publishing Co., 675 P.2d 747, 750–52 (Colo. App. 1983), cert. denied, 467 U.S. 1252 (1984)
(a county commissioner was the model for “a fictional character with an unlikely background”;
allegations of impropriety were not to be taken seriously).
13. Freedlander v. Edens Broadcasting, Inc., 734 F.Supp. 221, 228 (E.D. Va. 1990), aff ’d
mem. 923 F.2d 848 (4th Cir. 1991) (public figures, principals in a highly publicized bank-
ruptcy, were parodied in a song with “nonsensical” lyrics); Walko v. Kean College of New
Jersey, 561 A.2d 680, 683–88 (N.J. Super. 1988) (a college administrator, a limited public
358 NOTES
figure, was named as the person placing an obviously fake advertisement offering “good phone
sex”).
14. Netzer v. Continuity Graphic Associates, Inc., 963 F.Supp. 1308, 1324–25 (S.D.N.Y.
1997) (variations of the name of a cartoon artist were used as an alias in one panel of a comic
strip with a “fantastic setting”); Frank v. National Broadcasting Co., 506 N.Y.S.2d 869, 872–
75 (App. Div. 1986) (a tax consultant was depicted in a Saturday Night Live episode as giving
advice “extremely nonsensical and silly”); Myers v. Boston Magazine Co., 403 N.E.2d 376
(Mass. 1980) (a sports announcer, described as the “worst” in Boston, was said to be “the only
newscaster in town who is enrolled in a course for remedial speaking”).
15. Stien v. Marriott Resorts, Inc., 944 P.2d 374 (Utah App. 1997) (the wife of an
employee, in a false light claim, objected to an office video that purported to discuss the
employee’s sexual relation to plaintiff but did so in obvious jest).
16. University of Notre Dame v. Twentieth Century Fox, 256 N.Y.S.2d 301, 304 (App. Div.
1965), aff ’d, 207 N.E.2d 508 (N.Y. 1965).
17. Hicks v. Casablanca Records, 464 F.Supp. 426, 433 (S.D.N.Y. 1978). For further
discussions of the distinction between fact and fiction, see Amspacher and Springer (1990) at
717–21, 725–32; Treiger (1989) passim.
18. Pring v. Penthouse International, Ltd., 695 F.2d 438, 440–41 (10th Cir. 1982), cert.
denied, 462 U.S. 1132 (1983). Additional details are provided in Franklin and Trager (1981–
1982) at 232 n.96.
19. Id. at 441–43.
20. Miss America Pageant, Inc. v. Penthouse International, Ltd., 524 F.Supp. 1280, 1286–
87 (D.N.J. 1981).
21. 485 U.S. 46 (1988), discussed in Chapters 12 and 17.
22. 695 F.2d at 442.
CHAPTER THIRTY-SIX
1. Corrigan v. Bobbs-Merrill Co., 126 N.E. 260, 262–63 (N.Y. 1920).
2. Id. at 265.
3. 364 F.2d 650 (2d Cir. 1966).
4. Id. at 651.
5. Id. See also Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 T.L.R. 581 (C.A.
1934).
6. Warner Bros. Pictures v. Stanley, 192 S.E. 300 (Ga. App. 1937).
7. Kelly v. Loew’s Inc., 76 F.Supp. 473 (D. Mass. 1948).
8. American Broadcasting–Paramount Theatres, Inc. v. Simpson, 126 S.E.2d 873 (Ga.
App. 1962).
9. Levey v. Warner Brothers Pictures, 57 F.Supp. 40 (S.D.N.Y. 1944).
10. Wright v. R.K.O. Radio Pictures, 55 F.Supp. 639 (D. Mass. 1944).
11. See, e.g., Middlebrooks v. Curtis Publishing Co., 413 F.2d 141 (4th Cir. 1969) (a
character in a magazine short story, patterned after plaintiff, was given some distinguishing
features and named “Esco Brooks” rather than “Larry Esco Middlebrooks”).
12. Davis v. Costa-Gavras, 654 F.Supp. 653, 654–58 (S.D.N.Y. 1987).
13. Id. at 658. Accord, Leopold v. Levin, 259 N.E.2d 250 (Ill. 1970) (minor fictionaliza-
tion in a novel based on an actual crime).
14. See Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541 (4th Cir. 1994), discussed in
Chapter 7.
15. Geisler v. Petrocelli, 616 F.2d 636, 637–38 (2d Cir. 1980).
16. Id. at 640.
NOTES 359
17. Id. at 639. For a critical view, see Garbus and Kurnit (1985) at 418–21.
18. Springer v. Viking Press, 457 N.Y.S.2d 246, 249 (App. Div. 1982), aff ’d, 458 N.E.2d
1256 (N.Y. 1983).
19. Ibid. Further details are given in Garbus and Kurnit (1985) at 405–10.
20. 457 N.Y.S.2d at 250.
21. Polakoff v. Harcourt Brace, 3 Media L.Rep. 2516, 2517 (N.Y. Sup. Ct. 1978), aff ’d,
413 N.Y.S.2d 537 (App. Div. 1979).
22. Id.
23. Id. at 2517–18. Supporting the pertinence of theories other than defamation, see LeBel
(1985). For arguments to the contrary, see Rich and Brilliant (1986) at 33–41; Zimmerman
(1985).
24. For a recognition of the problem and examples, see Amspacher and Springer (1990) at
702–4, 732–34.
25. Bindrim v. Mitchell, 155 Cal. Rptr. 29, 33–38 (Cal. App. 1979), cert. denied, 444 U.S.
984 (1979) (the quoted language is at 37 and 38).
26. Id. at 39.
27. Id. at 43–45 (dissenting opinion).
28. On this general point, see Hill (1976) at 1307–13; Wilson (1981) at 30–31, 38–39;
Comment, “Clear and Convincing Libel” (1983) at 534–37.
29. For a discussion of “faction” in general and The Burning in particular, see Franklin and
Trager (1981–1982) at 230–32; Silver (1978) at 1067–68, 1074–75, 1080–86.
30. For further discussions from a literary perspective, see Booth (1983); Kernan (1965);
Rosenheim (1963); Tave (1960).
31. Marcinkus v. NAL Publishing Inc., 522 N.Y.S.2d 1009, 1013 (Sup. Ct. 1987).
32. See Franklin and Trager (1981–1982) at 223–24.
33. See id. at 225–27; Meltzer (1984) at 1153–55. For tests more protective of authors,
see Wilson (1981) at 43–48; Comment, “Clear and Convincing Libel” (1983) at 538–42.
More generally, see Anderson (1985); Forer (1987) at 235–63, 297–304, 349–52; and Schauer
(1985).
CHAPTER THIRTY-SEVEN
1. Blumenthal v. Drudge, 992 F.Supp. 44 (D.D.C. 1998), unrelated procedural issues in
186 F.R.D. 236 (D.D.C. 1999) and 2001 U.S. Dist. Lexis 1749 (D.D.C. 2001).
2. 47 U.S.C. § 230(c)(1).
3. 47 U.S.C. § 230(e)(3).
4. 992 F.Supp. at 47.
5. See Masur (2000); O’Neil (2001) at 41–42.
6. See O’Neil (2001) at 39–40 (also a source of additional details about the Drudge case).
7. Godwin (1994) at 7–8; Weber (1995). Weber’s argument is confined to Internet bulle-
tin boards. As regards those participating regularly in the activities of a particular bulletin
board, the argument may have some merit but also may require additional qualifications.
8. Accord, Hadley (1998); O’Neil (2001) at 51–53.
9. See, e.g., Computerized Thermal Imaging v. Bloomberg L.P., 312 F.3d 1292 (10th Cir.
2002); Carafano v. Metrosplash.Com, Inc., 207 F.Supp.2d 1055 (C.D. Cal. 2002).
10. Zeran v. America Online, 129 F.2d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937
(1998).
11. Id. at 329.
12. Id. at 330–34.
13. Lidsky (2000).
360 NOTES
14. Id. at 866–68.

15. Id. at 878–80, 933.
16. Id. at 891–92.
17. Compulsory disclosure was approved in America Online v. Nam Tai Electronics, Inc.,
571 S.E.2d 128 (Va. 2002). Cases refusing compulsory disclosure include Columbia Ins. Co. v.
Seescandy.Com, 185 F.R.D. 573 (N.D. Cal. 1999); Doe v. 2TheMart.com Inc., 140 F.Supp.2d
1088 (W.D. Wash. 2001); Anderson v. Hale, 2001 U.S. Dist. Lexis 6127 (N.D. Ill. 2001);
Dendrite International v. Doe No. 3, 775 A.2d 756 (N.J. Super. 2001). In each case the plaintiff
had failed to show an adequate basis for compelling disclosure. The issue is discussed in
Branscomb (1995) at 1641–43, 1675–76; Lidsky (2000) at 176–79, 881 n.134; O’Neil (2001)
at 37–38, 43–45; Tien (1996).
18. See, e.g., Revell v. Lidov, 2002 U.S. App. Lexis 27200 (5th Cir. 2002); Young v. New
Haven Advocate, 2002 U.S. App. Lexis 25535 (4th Cir. 2002); Barrett v. Catacombs Press, 44
F.Supp.2d 717 (E.D. Pa. 1999) (also reviewing prior cases, mostly concerned with jurisdiction
over commercial websites in connection with a variety of nondefamation lawsuits). The issue is
discussed in O’Neil (2001) at 40.
19. 18 U.S.C. §§ 2510(12) to (16).
20. 18 U.S.C. § 2511(2)(d).
21. 18 U.S.C. §§ 2701–11.
22. 18 U.S.C. § 1030.
23. Some courts have given a restrictive interpretation to the reference to “electronic
communication service” in 18 U.S.C. § 2701(a). See the cases cited infra at n.26. In view of the
broad definition given to this term in 18 U.S.C. § 2510, incorporated by reference by 18 U.S.C.
§ 2711(1), the courts’ restrictive interpretation appears to be without merit.
24. 18 U.S.C. §§ 1030(a)(5)(B)(i) and 1030(g).
25. 18 U.S.C. § 2701(c)(2) (Stored Communications Act); 18 U.S.C. § 1310(a)(2) (Com-
puter Fraud and Abuse Act). The federal statutory framework is discussed in Johnson and Green
(2002) @ 280–87 and 297–98.
26. See In re Pharmatrak Privacy Litigation, 220 F.Supp.2d 4 (D. Mass 2002), reversed on
other grounds, 2003 U.S. App. Lexis 8758 (1st Cir. 2003); In re Doubleclick Privacy Litiga-
tion, 154 F.Supp.2d 497 (S.D.N.Y. 2001); cf. In re Intuit Privacy Litigation 138 F.Supp.2d
1272 (C.D. Cal. 2001) (rejecting application of the Wiretap Act and the Consumer Fraud and
Abuse Act but allowing a claim under the Stored Communications Act to proceed on a disputed
issue as to authorization). See also Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002),
a case involving alleged unauthorized accessing of a secure site maintained by an airline em-
ployee. The Stored Communications Act violation was remanded on the question of whether
access had been authorized by a user of the site. See also Lin (2002) at 1109–12 (tort law),
1112–17 (federal criminal statutes).
27. See the Restatement provision quoted in Chapter 27.
28. Cf. Noah v. AOL Time Warner, Inc., 2003 U.S. Dist. Lexis 8242 (E.D. Va. 2003)
(rejecting claims of ethnic harassment in AOL chat rooms on multiple grounds, including the
bar of the Communications Decency Act).
29. 104 F.3d 1492 (6th Cir. 1997).
30. The full text of the story is set forth at 104 F.3d 1497–98 (dissenting opinion).
31. Id. at 1498 n.3 (dissenting opinion). The Alkhazar case is discussed by O’Neil (2001)
at 68–71 (also discussing recent unreported cases imposing liability for the dissemination of
threats over the Internet).
32. 290 F.3d 1058 (9th Cir. 2002) (en banc).
33. 18 U.S.C. §§ 248(a)(1) and (c)(1)(A).
NOTES 361
34. 290 F.3d at 1074.

35. 290 F.3d at 1075. Such “true threats” are not protected by the First Amendment. Watts
v. United States, 394 U.S. 705, 709 (1969).
36. Id. at 1079.
37. Id. at 1080.
38. Id.
39. Id. at 1086.
40. Id. at 1088–89 (dissenting opinion of Judge Reinhardt) and 1101–2 (dissenting opin-
ion of Judge Berzon).
41. Id. at 1102–11 (dissenting opinion of Judge Berzon).
42. Id. at 1089–1101 (dissenting opinion of Judge Kozinsky). The quoted language is at
1089; the basis for the modified quotation set forth in the text is at 1092.
43. See Brandenberg v. Ohio, 395 U.S. 444 (1969) and Hess v. Indiana, 414 U.S. 105
(1973), discussed in Chapter 15.
44. Opposed to the imposition of liability in Planned Parenthood are Gey (2000) and Kobil
(2000). A contrary view is expressed in Hagen (2000). O’Neil (2001) provides a balanced
discussion at 62–68.
45. 123 S. Ct. 1536 (2003). The statute is quoted id. at 1543–44.
46. Id. at 1544.
47. Id. at 1548.
48. Separate opinions were written by Justice Stevens (id. at 1552), Justice Scalia (id. at
1552), Justice Souter (id. at 1559), and Justice Thomas (id. at 1562). Each concurred in part
and dissented in part in the Court’s decision.
49. For a possible harbinger of things to come, see Global Telemedia International v. Doe,
132 F.Supp.2d 1261 (C.D. Cal. 2001) (allegedly defamatory utterances, posted on an Internet
bulletin board, were held to be nonactionable opinion; some weight was given to the bulletin
board context).
CHAPTER THIRTY-EIGHT
1. New York Times Co. v. Sullivan, 376 U.S. 254, 279 n.19 (1964).
2. Id. at 271–72.
3. Garrison v. Louisiana, 379 U.S. 64, 75 (1964).
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INDEX 371
INDEX
ABC, 50, 249; involuntary interviews by, America Online (AOL), 304, 360(nn17, 28);
222–23; Medicare fraud story by, 246–247; advertisements on, 293–94; Drudge Report
undercover investigations, 250–53 and, 291–92
Abduction, 210–11, 310, 311 American Opinion (magazine), 62
Abramson, Leonard, 217 Anderson, Barbara, 226
Accidents, media access to, 229–30, 347(n12) Anderson, Jack, 50–51, 262
Accusations, burden of proof in, 125–26 Anderson v. WROC-TV, 226
ACLA. See American Coalition of Life Activists Ann Arbor, 298
Adoption, private records of, 205–6 Antiabortionists, threats and harassment by,
Adultery, 55, 56–57, 145, 212 299–302
Advertisements, 163, 192; civil rights Anticommunism, 8–9, 62, 186
movement and, 11–12; fictitious, 78–79; Anti-Defamation League, 8
Internet, 293–94; personal, 112–13; Anti-Paparazzi statute, 223
representation in, 88–89; standard of care Anti-Semitism, accusations of, 7, 8
for, 116–17, 149–50 AOL. See America Online
Advocacy, 47 April, Mary, 135–36
Advocates for Life Ministries (ALM), 299 April v. Reflector-Herald, Inc., 135–36
African Americans, racism against, 107–8, 109 Aquino v. Bulletin Co., 205(n13)
Age discrimination, 135–36 Arbib, Robert, 132–33, 134
Agnew, Spiro, 40 Archaeological work, 68
AIDS: and public status, 74, 344–45(n9); Arctic Co. v. Loudoun Times Mirror, 68
television reports on, 239–40 Arizona, 69, 75, 296
Aircraft companies, 87 Arkansas, 142
Aircraft safety, 92 Arrests, reporting of, 129
Air Florida crash, 82 Arson, accusations of, 134–35
Air traffic control, 82, 84–85, 156 Art experts, reputation and, 140–41
Alabama, 12 Assassination, of Robert Kennedy, 83, 84
Alabama Supreme Court, 99 Assassination attempt, on Gerald Ford, 196
Aladdin Hotel, 113 Associated Financial Corporation, 71
Albin, J. D., 151 Associated Financial Corp. v. Financial Services
Albright, Madeleine, 144 Information Co., 71
“The Algonquin Project” (novel), 287 Associated Press, 46, 75–76, 80–81, 150–51
Allegations, 136, 141, 145 Associated Press v. Walker, 46–48, 53, 55, 91,
ALM. See Advocates for Life Ministries 150–51
Altercations, high school, 119 Athletes, as public figures, 55, 60, 78
Ambulance services, 71 Atlantic Monthly, 115–16
American Birds (magazine), on DDT, 132, 133 Atlas Maritime Company, 89, 90
American Broadcasting–Paramount Theatres, Inc. Attorneys, 64; as public figures, 65–66;
v. Simpson, 282, 283 organized crime accusations and, 80–81
American Coalition of Life Activists (ACLA), Aubry, Pascale Claude, 234
actions of, 299–302 Aubry v. Editions Vice-Versa Inc., 234
372 INDEX
Audiotaping: of accidents, 229–30; unautho- Blackmail, 70, 118, 233

rized, 222–23, 245–46, 248–49, 253, Blake v. Gannett Co., 69
262–65 Blasi, Vincent, 185
Audubon Society, 132 Blood feuds, 18
Australia, 19 Blue Cross, 89
Authority, abuse of government, 26, 27–29 Blue Ridge Bank, 91
Authors, as public figures, 79–80 Blue Ridge Bank v. Veribanc Inc., 91–92
Autobiography, use of private issues in, 212–13 Blumenthal, Jaqueline, 292
Autonomy, individual, 26–27, 32 Blumenthal, Sidney, 291–92
Aviation Consumer (magazine), 87, 92 Blumenthal v. Drudge, 292
Aware, Inc., 9 Bobbs-Merrill Company, 280–81
Ayeni v. CBS, 227, 253 Bock Cement Foundations, 119–20
Boddie, Sandra, 249
Baer, Frank, 41–42 Boddie v. American Broadcasting Companies Inc.,
Bair v. Clark, 90 249
Bankruptcy, false accusations of, 97 Body surfing, 197–98
Banks, banking, 94; government regulation of, Boehner, John, 263
91–92 Boehner v. McDermott, 263–64, 266, 268
Barber, Dorothy, 227 Bombing, 200, 298, 326(n37)
Barber v. Time, Inc., 227 Bond marketing fund, 94
Barbuto, James, 249 Book reviews, as opinion, 120
Barnett, Susan, 250, 251 Booksellers, obscene literature and, 116
Bartnicki, Gloria, 264–65, 266 Borton, Linda, 231–32
Bartnicki v. Vopper, 264–65, 266–67, 268, Borton v. Unisys, 231–32, 235
269, 197 Bose Corporation, 131
Baugh, Danielle, 248 Bose Corp. v. Consumers Union, 131
Baugh, Yolanda, 248 Bowman, Sylvia, 121–22
Baugh v. CBS, Inc., 248 Bowman v. Heller, 121–22, 123–24
Bay Harbor Islands (Fla.), 7, 8 Brandeis, Louis D., The Right to Privacy, 191–92
Bay of Pigs, 260–61 Brandenburg v. Ohio, 108–9, 302, 304
Beaton, Michael, 231 Branzburg v. Hayes, 259, 260
Beauharnais, Joseph, 107 Braun, Jeannie, 57–58
Beauharnais v. Illinois, 107–8, 109 Braun v. Flynt, 57–58
Beech Aircraft, 87 Breach of the peace, 107–8
Beech Aircraft v. National Aviation Underwrit- Brennan, Justice, 61–62
ers, 87, 88, 92 Bresler, Charles, 70, 118
Beef industry, 110 Brewer, Anita Wood, 55, 56, 102, 181–82
Belknap County (N.H.), 41 Brewer, John, 55, 56, 182
Bell South, 260 Brewer v. Memphis Publishing Co., 55–56, 80,
Bendectin, 59 101, 102, 145, 181–82, 185
Ben-Oliel, Florence, 140–41 Bribery, judicial, 153–54, 249–50
Ben-Oliel v. Press Publishing Co., 140–41 Briscoe v. Reader’s Digest Ass’n, 201
Bergen Record (newspaper), 92 Britton, John Bayard, 299
Berger, Erma, 253–54 Broadcasters, 116; disparaging remarks and,
Berger, Paul, 253–54 122–23
Berger v. Hanlon, 253–54 Broadcasting: cable television, 203–5; radio,
Bindrim, Paul, 288–89 274–75, 278–79
Bindrim v. Mitchell, 288–89, 290 Brown & Williamson Tobacco Corporation,
Biography; fictitious, 141–42; use of public 87, 241, 243
record in, 212–14 Brown & Williamson Tobacco Corp. v. Jacobson,
Birds, and pesticides, 132–34 86–87(n3)
B.J.F., 208–9 Brown v. Kelly Broadcasting Co., 95–96
Blacklisting, 9 Bruno & Stillman, 88
INDEX 373
Bruno & Stillman v. Globe Newspaper Co., 88 Cartoons, pornographic, 122

Bryant, Paul “Bear,” 53 Cassidy v. Daily Mirror Newspapers, 114
Buckley, William F., Jr., 79 Cattlemen, and Oprah Winfrey, 110–11
Buckley v. Littel, 79 CBS, 152–53, 241, 243; intrusive journalism
Bufalino, Charles, 80–81 of, 227–28, 248
Bufalino v. Associated Press, 80–81 Celebrities, 80, 85, 235; as private persons, 57–
Bullying, 221 58; as public figures, 55–56, 60, 198–99
Burden of proof, in falsity cases, 125–28, 129, Cellular phones, illegal interception of, 263–66
153 Censorship, 258
Burgess, John S., 59–60 Central Intelligence Agency (CIA), 258;
Burgess v. Reformer Publishing Co., 59–60 histories of, 260–61
Burglary, Watergate, 83 Character, protection of, 141
Burnett, George, 150 Chemical waste storage, 220–21
“The Burning” (Coover), 289 Cherne Industrial, Inc. v. Grounds & Associates,
Burns, Robert E., “I Am a Fugitive from a 242
Georgia Chain Gang,” 282 Chicago, 107
Burnstan, Rowland, 48 Chic magazine, 57–58
Bus safety, 187 Child abuse, 49–50
Businesses, 180, 228; criticism of, 94–95; Children, 226; privacy of, 216–17; protection
government regulation and, 91–92; of, 50, 310–11; public disclosure and, 205–7
insolvency of, 92–93; proof of malice Chile, 284
against, 93–94; as public or private, 86–88, Chimpanzees, 127
327(n6); representations made by, 88–89 Christie, Agatha, 276
Business misconduct, 100 CIA. See Central Intelligence Agency
Butts, Wally, 53–54, 55, 150 Cioffari, Philip, 277–78
Byron, Lord, 138 Citrus County (Fla.), 38
Bystanders, media use of, 219–20 Civil actions, 22–24, 62
Civil rights, 130
Cable television, 71; sexual behavior as topic Civil-rights movement, 11; and University of
on, 203–5 Mississippi, 46, 150–51
Cagney, James, 283 Civil strife, statutes to prevent, 107–8
California, 99, 206, 219, 259; Anti-Paparazzi CJD. See Creutzefeldt-Jakob Disease
statute in, 223, 230–31; crime reporting in, Classified documents, publishing of, 256–61
200–201; invasion of privacy in, 196, 225; Clement, Roland, 132–33, 134
privacy of workplace in, 252–53; public Cleveland Plain Dealer (newspaper), 140
disclosure of private facts in, 202–3 Clinton, Bill, 291
California Supreme Court, 83 CNN, 253–54
Canada, 19, 234 Cohan, George M., 283
Candidates, for public office, 151–52, 156, Cohen, Dan, 237–38
170, 180–81, 237–38 Cohen v. Cowles Media Co., 237–38, 239, 240
Cannan Communications, 81 Cohn, Cynthia, 207–8
Cantrell, Margaret, 140, 144 College of Alameda, 202
Cantrell, Melvin, 140, 144 Colorado, 120
Cantrell v. Forest City Publishing, 140, 144, 146 Commercial speech, 89
Capital Times (newspaper), 82 Common law: defamation in, 33, 136–37,
Capone, Al, 282 182–84, 232; English, 18–19; privileges of,
Capra, Anthony, 201 21–22
Capra, Helen, 201 Commonwealth v. Wiseman, 239
Capra v. Thoroughbred Racing Ass’n, 201 Communication, 115; First Amendment
Carlisle, John, 199–200 protection of, 101–2; private, 98–99
Carlisle v. Fawcett Publications, 199–200 Communications Decency Act, 292, 294, 298,
Carmichael, John, 150 304, 360(n28)
Carnahan, Laura, 229 Compensation, 187; public, 184–85
374 INDEX
Computer Fraud and Abuse Act, 297 Crime, 219, 243; notoriety and, 74–75;
Computers, 260. See also Internet privacy and, 199–201, 347(n17)
Concord Monitor (newspaper), 37–38 Criminal justice system, 65
Confidentiality, 261, 355(n12); promises of, Criminals, immunity offered to, 75, 76
237–38, 239–40, 241–44 Crist, Robert, 300, 301
Conklin v. Sloss, 201 Criticism, 65, 120; good faith, 12–13; of
Connaughton, Daniel, 153–55 government, 85, 94–95, 136, 183–84; by
Connelly v. McKay, 141 private persons, 186–87; public, 44, 294–96
Connolly, Ronald, 100 Cross burning, 303
Connolly v. Labowitz, 100 Crystal River (Fla.), 38, 180
Constitutional privilege, 32–33, 81, 85, 125, CU. See Consumers Union
156, 159, 183; implementing, 161–71; Cuba’s United Ready Mix, 119–20
media and, 64, 101; and petitions, 51–52; Cuba’s United Ready Mix, Inc., v. Bock Cement
reducing scope of, 185–87 Foundations, 119–20
Consumer affairs, 95 Curtis Publishing Company, 53–54
Consumer reporting, 30 Curtis Publishing Co. v. Butts, 53–54, 58, 60,
Consumers Union (CU), 131 78, 150, 185
Contempt of court, 50, 72–73 Custody disputes: as public controversy, 49–50
Continental Cablevision, 71 Cyanide sludge, 90
Continental Cablevision v. Storer Broadcasting Co., 71
Contract(s): breach of, 244, 248; proprietary Daily Mirror, 114
information in, 242–43 Dairy Stores, Inc. v. Sentinal Pub. Co.,
“A Contractor’s Stag Party for Boys at the 93(nn53–54)
Pentagon,” 86 Dale, Lynne, 250, 251
Controversy, public, 89–91 Dall, Curtis B., 274
Conversations, third party, 249–50 Dall v. Time, Inc., 274, 279
Convicts, escaped, 139 Damages, 99, 100, 176, 238; allowable, 168–
Cooke, Joel, 229, 230 69; limitations on, 97–98; for invasion of
Coover, Robert, “The Burning,” 289 privacy, 208–9, 228, 234, 246, 254–55;
Copeland family, 248 for personal injury, 273–74
Copeland v. Hubbard Broadcasting, 248 Dameron, Merle, 82, 84–85, 156
Coplin, Randy, 203–4 Dameron v. Washingtonian Magazine, Inc., 84–85
Coplin v. Fairfield Public Access Television Damron, James, 38, 39, 180
Committee, 203–5 Damron, Leonard, 38–39, 180–81
Copyright Act, 232 “Dangerous Food,” 110
Coroner’s inquests, presence at, 62, 63–64 Daniels, Ruby Lee, 212, 213–14
Corporations: public or private, 86–88; public Davis, Ray, 284–85
representation of, 88–89 Davis v. Costa-Gavras, 284–85
Correction, 165–66; media, 162–63, 278–79 DDT, impacts of, 132–34
Corrigan, James E., 280–81 Deaton v. Delta Democrat Pub. Co., 206
Corrigan, Michael, 114 Debt collection, 75–76
Corrigan v. Bobbs-Merrill, 280–81 Deception: erroneous charges of, 75–76;
Corruption, 186, 249 journalists and, 222–23, 246–47, 248,
County home, abuses at, 211–12 250–51, 254–55; third party, 249
Court of King’s Bench, 114 Defamation, 1–2, 3, 4, 7, 11–12, 30, 44, 45,
Court of Queen’s Bench, 19 48–49, 59, 65, 71, 80, 83, 84, 125, 168,
Cox Broadcasting Corp. v. Cohn, 207, 211, 261, 174; actionable, 19–20, 136; anticommu-
263, 346(n40) nism and, 8–9; celebrity and, 55–56; and
Cox Communication v. Lowe, 220 common law, 21, 182–84; constitutional
Credentials, protection of, 79 privilege and, 32–33; falsehoods and, 113,
Credit reports, privacy of, 98, 102 130, 157; in fictional works, 280–83; and
Credit unions, 51, 91 government authority, 27–28; of group,
Creutzfeldt-Jakob Disease (CJD), 110 109–11; individual autonomy and, 26–27;
INDEX 375
Internet and, 291–96; negligence standard Doubleday, 288

and, 95–96; private citizens and, 50–51; Downton, Mr., 19
procedural reform and, 172–73; repetition of, Drudge, Matt, 291; on Internet journalism,
136–37; truth and, 95, 178; unintentional, 292–93
114–15; U.S. Supreme Court on, 15, 16–17, Drudge Report, 291–92, 293
37–38; victims of, 9–10, 157–58, 184–85 Drug trafficking, 65
Defendants, 176; in civil actions, 23–24; in Drunkenness, 100
common law, 21, 22; legal responses of, Dugandzic, Maria, 250
163–64; litigation phases of, 166–67, 174– Dulles Airport, 82
75; responsibilities of, 172–73; retraction or Dun & Bradstreet, 97, 98–99
correction and, 165–66 Dun & Bradstreet v. Greenmoss Builders, 97–99,
De John, 99 101, 102, 114, 116, 122, 124, 157, 169, 307
Delaware, 100 Dunlap, Sheriff, 135–36
Democratic National Committee (DNC), 83 Durham, James, 81
Dempsey, Henry, 138–39, 218 Durham v. Cannan Communications, 81
Dempsey v. The National Enquirer (1988), 218 Duval County (Fla.), 208–9
Dempsey v. The National Enquirer (1989), Duval County Sheriff ’s Office, information
138–39, 145 divulged by, 208, 209
Derogatory opinions, 19–20, 26, 43–44, 71
Derogatory material, in advertisements, 293–94 Earhart, James, 262
Desegregation, federal forces and, 46 Eavesdropping, 249. See also Wiretapping
Desnick, J. H., 246–47 Economic Espionage Act, 244
Desnick v. American Broadcasting Companies, Economic losses: demonstrating, 165–66;
Inc., 246–48 responsibility for, 172–73
Desnick Eye Centers, 246–47 Edwards, Gordon, 132, 133
The Desperate Hours (Hayes), 139 Edwards v. National Audubon Society, 133, 134,
Deteresa, Beverly, 222–23 135–36
Deteresa v. American Broadcasting Companies, Eisenhower, Dwight, 287
222–23, 224, 236, 240 Election campaigns: defamation in, 37–40,
Devaraj, John, 250 170; judges, 153–55
Devlin, John, 132, 133 Electoral process, public figures and, 37–39
Diana, Princess, 223 Elliott, Richard, 303
Diaz, Toni Ann (Antonio), 202–3 Ellsberg, Daniel, Pentagon Papers and, 256–57
Diaz v. Oakland Tribune Co., 202–3 ELM, public health alerts and, 76
Dickerson, Dolly Jean, 248–49 ELM Medical Laboratory v. RKO General, 76
Dickerson v. Sally Jessy Raphael, 249 Embezzlement, witness to, 60
Dieppe (France), 273 Embrey v. Holly, 274–75, 278
Dietemann, A. A., 245–46, 248 Emotional distress, 144, 238; infliction of, 2,
Dietemann v. Time, Inc., 245–46, 247, 254 23–24, 121, 124, 210–11, 226, 228,
Disk jockeys, disparaging remarks by, 122–23 298–303, 310, 351(n28)
Disparagement: personal, 274–75; product, Employee-employer disputes, 81
131, 305 Employment, discharge from, 79
Disparaging remarks, 100, 122–23 England, common law in, 18–19
Dissenting opinions, vs. malice, 45 Entertainers, 9; as public figures, 55, 60, 78
Divorce, 56–57, 205 Entrepreneurs, as public figures, 90–91
DNC. See Democratic National Committee Environmental damage, from pesticides, 132–34
Dodd, Senator, 262 Environmental Protection Agency (EPA), 90
Doe v. Roe, 205(n10) Epithets, 120
Dolan, James, 153–54 Espionage, grand jury investigation of, 72–73
Dolphin technology, 69 Esposito-Hilder, Annette, 122–23
Dombey, Dale, 69 Esposito-Hilder v. SFX Broadcasting, Inc., 122–23
Dombey v. Phoenix Newspapers, Inc., 69 Eszterhas, Joseph, 140
Domestic affairs, prying into, 248–49 Ethnicity, 51, 144
376 INDEX
Evans v. Lawson, 51 Fetler v. Houghton Mifflin Co., 281, 283

Evening Star (newspaper), 86 FHA. See Farmers Home Administration
“Execution” (Hauser), 284 Fiction, 357(n12); fact presented as, 280–90;
Expertise, 79 false light privacy and, 139, 141–42;
Extortion, 25 presented as fact, 273–79; real persons and,
273–74
Fabrication: deliberate, 305–6; of interviews, Films, 239, 276; fact presented as fiction in,
138–39 282–85
FACE. See Freedom of Access to Clinic Financial information, privacy of, 206, 345n20
Entrances Act Financial Services Information Company, 71
Fact: false implication of, 119–20; fiction Firestone, Mary Alice Sullivan, 56–57
presented as, 273–79; in fictional presenta- Firestone, Russell A., Jr., 56
tions, 280–90; presented on Internet, 295–96 First Amendment, 2, 3, 4, 25–26, 27, 60, 95,
Faction, 289–90 116, 118, 124, 146, 170, 182, 183, 309–
Fairchild Publications, 48–49 11; constitutional privilege and, 156, 161,
Fairfield (Iowa), 203–5 169; and defamation, 17, 98, 175; fair and
Fall River (Mass.), 283–94 accurate reporting and, 144–45; false light
Falsehoods, 9, 19, 31, 65, 97, 100, 116, 118, privacy and, 139–40, 143; and group libel
122, 137, 144, 306; accusations of, 132– suits, 110–11; hate speech and, 108–9; and
33; defamatory, 3, 10, 12, 20, 21, 52, 64, libel suits, 13, 14; protected information
71, 130, 175–76; fiction and, 273, 274; in and, 261–62; protection under, 100, 101–
implication of fact, 119–20; injurious, 22, 2, 259; wiretapping and, 263–64
145; medical practice and, 245–46; Fitzgerald, James, 69
newspaper perpetration of, 93–94, 125–26; Fitzgerald v. Penthouse International, 69
perpetuating, 151–52, 154–55; in personal Flexcraft, 221
ads, 112–13; privacy and, 24, 138–42, “Flickering Flame,” 55
145–46; proving, 126–28, 157; in Florida, 90, 170, 218; defamation case in, 7,
reporting, 181–82; unintentional, 114–15; 182; Firestone divorce in, 56–57; libel suits
vindication of, 167–68 in, 38–39; rape victims in, 208–9
False light privacy. See Privacy Florida House of Representatives, 170
False representation, 248 Florida Star (newspaper), 208–9, 210
Falsity, 3, 24, 113, 114, 124, 125, 129; The Florida Star v. B.J.F., 207, 208–10, 211,
constitutional privilege and, 168–69; as 214, 215, 261, 263, 264, 346(n40)
litigation issues, 177–79; proving, 21, 126– Florissant (Mo.), 71
28, 157, 164, 165 Flynt, Larry, 57–58
Falwell, Jerry, parody of, 78–79, 119, 123 Fogel, Anna, 219–20
Fame, and public figures, 54–55 Fogel, Maxwell, 219–20
Famines, 29 Fogel v. Forbes, Inc., 219–20, 236
Farmers Home Administration (FHA), 69 FOIA. See Freedom of Information Act
Faulk, John Henry, 9, 186 Fonda, Jane, 55
Faulk v. Aware, Inc., 186 Food and Drug Administration, 59
Fault, and constitutional privilege, 168–69 Food Lion, deceptive investigation of, 250–52
Fawcett Publications, 199–200 Food Lion v. Capital Cities/ABC, Inc., 250–52,
FBI. See Federal Bureau of Investigation 254, 255
“February Hill” (Lincoln), 283–84 Food safety, 110
Federal Aviation Administration, 92 Football, Georgia-Alabama, 53, 150
Federal Bureau of Investigation (FBI), Ford, Gerald, 196, 199
antiabortionists and, 300 Foretich, Doris, 50
Federal Reserve Board, 92 Foretich, Eric, 49–50
Federal Trade Commission (FTC), 75, 76 Foretich, Hillary, 49–50
Federal witness program, 201 Foretich, Victor, 50
Fetler, Andrew, 281 Foretich v. Capital Cities/ABC, Inc., 49–50
Fetler, Daniel, 281 Fossum, Steven, 211
INDEX 377
Foster, Kimberly, 231, 232 Glamour magazine, 239

Foster v. Livingwell Midwest, 235 Globe International Publishing, 83, 142
Fourteenth Amendment, 25 “Golden Fleece of the Month Award,” 67
Frazier, Kristie, 249–50 Goldman, Ronald, 222
Franchising, store, 125–26 Gossip, 58, 100, 145; Internet, 291–92;
Franklin Mills, 192 newspaper reporting of, 55, 56; public
Fraud, 25, 228; deceptive investigations and, issues and, 102–3; salacious, 101–2
250, 251–52; interviews and, 246–47 Government, 25, 44, 215; abuses of authority
Freedom of Access to Clinic Entrances Act in, 26, 27–28, 31; criticism of, 12–13, 29–
(FACE), 300, 301 30, 47–48, 69, 73, 74, 76, 85, 89, 93, 94–
Freedom of expression, 26, 29, 32 95, 136, 183–84; misconduct of, 70, 71,
Freedom of Information Act (FOIA), 212, protection of, 73, 77; protected information,
347(n17) 256–58, 261–62; reporting on, 76, 90
Freedom of press, 27, 309 Government agents, 227; raids by, 253–54,
Freedom of speech, 27, 31–32, 126, 176–77, 350(nn6, 7)
309–10. See also Speech Government employees: protection of, 43–44;
Sigmund Freud Archives, 129 subordinate, 42, 45
“Friends of Walker,” 46 Government regulations, 91–92
FTC. See Federal Trade Commission Grand juries, 60; espionage investigation for,
72–73
Galella, Ronald, 216–17 Grants, federal and state, 67
Galella v. Onassis, 216–17, 218, 223 Great Britain, 1, 110, 114
Gang members, socializing with, 65 Green, Arthur, 7–8, 182
Gannett, 44, 69 Greenbelt Consumer Services, 48, 49
Garner v. Triangle Publications, 201 Greenbelt Cooperative Publishing, 70
Garrison, Jim, 15, 16 Greenbelt Cooperative Publishing Ass’n v. Bresler,
Garrison v. Louisiana, 41, 97, 108, 306 70, 71, 118, 119
Gay community, 196–97 Greenmoss Builders, 97
Geisler, Melanie, 285–86, 290 Group libels, 107–11
Geisler v. Petrocelli, 285–86, 287, 299 Gunn, David, 299
Gender identity, 202–3
Georgia, 107, 282, 296; doctors as private Hall v. Post, 205–6(nn14–15)
citizens in, 50–51; right to privacy in, 192, Hamilton (Ohio), judicial bribery case in,
346(n31) 153–55
Georgia Athletic Association, 53 Harcourt Brace Jovanovich, 287
Georgia Society of Plastic Surgeons v. Anderson, Harlan, Justice, 46–47, 53, 54
50–51 Harley Davidson Motorsports, 99
Georgia Supreme Court, 192 Harley Davidson Motorsports v. Markley, 99
Gerhart, James, 101 Harm, 159; from deceptive investigation, 251–52
Gertz, Elmer, 62, 63–65 Harman, Charles, 267–68
Gertz v. Robert Welch, Inc., 63–65, 66, 78, 80, Harms, Louise, 123
81, 101, 109, 118, 145, 157, 166, 167, Harms v. Miami Daily News, 123
175, 278, 296; and civil liability, 113, 114; Harris, Rebekah, 206
on corporations, 86, 87, 88, 91; on criticism, Harris v. Eastern Pub. Co., 206
186–87; damages in, 97–98, 169; on falsity, Harte-Hanks Communications, Inc. v.
124, 165; malice requirement and, 143, 144, Connaughton, 153–55
181; on private communications, 99, 102; Hatch, Orrin, 40
standards of communication in, 115, 134 Hate mail, 23
Gilbert, Beatrice, 198, 199 Hauser, Thomas, 285; “Execution,” 284
Gilbert v. National Enquirer, 198, 199 Hawkins, Craig, 206
Gill, John, 219 Hawkins v. Multimedia, Inc., 206
Gill v. Hearst Publishing Co., 220, 236 Hayes, Joseph, The Desperate Hours, 139
Gingrich, Newt, 263 Haynes, Luther, 212–13
378 INDEX
Haynes v. Alfred A. Knopf, Inc., 213–14, 215 Immunity: of critics, 183; press, 180–82
Healey, Paul, 81 Immuno AG v. Moor-Jankowski, 127
Healey v. New England Newspapers, 81 Incarceration, 10
Health care insurance, 89 Incitement, antiabortionist, 302
HealthSouth Corp., 294 India, 19
Heistand, Kelly, 45 Indiana, 247
Heller, David, 121, 122 Industrial Foundation of the South v. Texas
Hellman, Lillian, 80 Industrial Accident Board, 205(n11)
Hellman v. McCarthy, 80 Information: free flow of, 158–59; illegally gained,
Hepatitis research, 127 256–69, 355(nn9, 10, 11), 356(n33)
Hepps, Maurice, 125–26 Inside Edition (television program), surveillance
Hepps v. Philadelphia Newspapers, Inc., 125–26(n2) by, 217–18
Herbert, Anthony, 115–16, 152–53 Insolvency, of businesses, 92–93
Herbert v. Lando, 115–16, 152–53, 171 Institutional embarrassment, 141
Hern, Warren, 300, 301 Insurance, 89, 91, 158, 192
Herring, Rick, 122 Insurance agents, 69
Hicks v. Casablanca Records, 276(n17) Interference with business advantage, 23–24
Hill family, 139, 145–46 Interference with contract, 23–24
“History of U.S. Decision-Making Process on Internet, 115, 117, 360(n17); defamation and,
Viet Nam Policy,” 256 291–96; infliction of emotional distress and,
Hitsgalore.com, 294–95 298–303; privacy on, 296–98; threats via,
Hog-processing facility, 91 310–11
Holly, Dennis, 274–75 Interstate Commerce Commission (ICC), 141
Hood v. National Enquirer, 206(n19) Interviews: ambush, 80, 240, 241, 246–47,
Hoppe, Harry, 275–76 349(n47); about bribery testimony, 154,
Hoppe v. Hearst Corp., 275–76 155; involuntary, 222–23; misrepresenta-
Horman, Charles, 284 tion in, 220–21; prisoner, 259–60; refusal
Horses, Appaloosa, 58 of, 217–18, 227; unauthorized, 248–49
Housing, low-income, 71 Investigative reporting, 95
Howard, George Bronson, “God’s Man,” 280–81 Iowa: cable television in, 203–5; public record
Howard, Robbin, 212, 346(n46) in, 211–12
Howard v. Des Moines Register & Tribune Co. Iroquois Research Institute, 68
(newspaper), 211–12, 346(n46)
Howland, Hewett Hanson, 281 Jackson, Justice, 108
Huggins v. Povitch, 241, 243–44 Jai alai proprietors, 91
E. Hulton & Sons, 273 James v. Gannett Co., 56, 80, 101, 102, 145
Humor, 120, 275; sexual, 276–77 Jane Doe v. Edward A. Sherman Pub. Co., 205(n12)
Hustler magazine, 78–79 Jane Doe v. Univision Television Corp., 240
Hustler Magazine v. Falwell, 78–79, 119, 123, Jaubert, James, 219
238, 251, 278, 289 Jaubert v. Crowley Post-Signal, Inc., 219
Hutchinson, Ronald, 67–68, 156 Jews, racism against, 109
Hutchinson v. Proxmire, 67–68, 69, 70, 71, John Birch Society, anticommunism of, 62
84, 185 Johnson, Dorothy, 212
Hyde v. City of Columbia, 210–11 Johnson, Marlene, 237
Johnson, Patty, 248
“I Am a Fugitive from a Georgia Chain Gang” Jones, Thomas Artemus, 273–74, 278
(Burns), 282 Jones, Sidney, 202
ICC. See Interstate Commerce Commission Jones v. Himstead, 71
Idaho, 76–77 Jones v. E. Hulton & Sons, 274
Idaho Supreme Court, 77 Journalism, 70, 117, 158, 345(n24);
Ideas, false, 118 government raids and, 253–54; improper
Illinois: antiracist statutes in, 107–8; Medicare use of, 216–18; intrusive, 227–28;
fraud and, 246–47 investigative, 245–46, 249, 250–51
INDEX 379
Journalists, 79, 221, 259; burden of proof and, Law enforcement, 350(nn6, 7, 8): criticism of,
125–27; criticism by, 94–95, 183–84; 73, 74, 75; raids by, 253, 254
deception by, 222–23, 249–52; improper Lawnmower repair, 92–93
tactics of, 216–18; Internet, 292–93; Lawrence, Andrew, 40
misconduct of, 218–19; reliability of, 115–16 Lawrence v. Moss, 40
Journal News (newspaper), perpetuating Lawsuits, reducing number of, 173–74
falsehoods, 154–55 Lawyers. See Attorneys
Jubilee, James, 303 Lebanon, 178
Judges, 19, 280; accusation of bribes, 153–54 Leigh, Janet, 199–200
Judicial system, confidentiality and, 261 Lemann, Nicholas: “The Promised Land,” 212–13
Jukes, Thomas, 132, 133 Le Mistral, Inc. v. CBS, 227–28
Juvenile offenders, 261 Lending policies, federal, 69
Lesbianism, accusations of, 99
Kane, Anthony, 264–65, 266 Lescht, Stacy, 252
Kansas, 74 Leslie, Joan, 283
Kansas City Star (newspaper), 79 Levey, Ethel, 283
KARK-TV v. Simon, 181 Levey v. Warner Brothers Pictures, 283, 284
Kassel, Jeffrey, 44 Lewis, Paul, 217, 218
Kassel v. Gannett Co., 44 Lewis, Susan, 211
Kelly, Robert, 282 L.G., 227
Kelly v. Loew’s Inc., 283 Liability, 1, 2, 23, 100, 117, 120; for
Kennedy, Caroline, 216 defamation, 21, 175, 182; for false advertising,
Kennedy, John, 216 112–13; of media, 62, 63–64, 115–16
Kennedy, Robert, assassination of, 83, 84 Libel, 12–14, 20, 37–39, 42, 46–48, 53–54,
Kentucky, 206, 249–50 75, 98, 158, 183; criminal, 15–16; group,
KGB, the Secret Work of Soviet Agents, 73 110–11; press and, 89–90; unintentional,
Khawar, Khalid, 83 114–15
Khawar v. Globe International, 83–84 Liberalism, 32
Kidnapping, 139 Liddy, G. Gordon, 83
King, Martin Luther, 11, 12 Lidsky, Lyrissa Barnett, 294, 295–96, 304
Kingsley, James, 181–82 Life magazine, 139, 145, 245–46
KOVR-TV v. Superior Court, 226, 228 Lincoln, Victoria, “February Hill,” 283–84
Kozinsky, Judge, 302 Linebaugh, Sherry, 122
Krug, Peter, 294 Linebaugh v. Sheraton Michigan Corp., 122
KRXO, 294 Lions International, 51
Ku Klux Klan, 108 Litigants, public status of, 59, 60
Kurth, Sidney, 65 Litigation, 158; avoiding, 162–63; expenses of,
Kurth v. Great Falls Tribune Co., 65 174–76; limiting, 173–74; phases of, 163–
65; treatment of economic losses in, 165–66;
La Belle Epoque, 7, 8 truth in, 177–79
Labor unions, 118, 151; appropriate conduct Los Angeles, 225
in, 121–22; elections and, 51, 123–24 Los Angeles Farmers’ Market, 219
Labowitz, Russell, 100 Loudspeakers, disparaging remarks about, 131
Lachman, Charles, 242–43 Louisiana: criminal libel case in, 15–16; public
Lachman v. Sperry-Sun Well Surveying, 242–43 office candidates in, 151–52
Laconia Evening Citizen (newspaper), 41 Louisville Times (newspaper), 249–50
Laetrile, 111 Lowes Island, 68
Lampinski, Gerald, 81 Loyalty, breach of, 250, 251
Landmark Communications, Inc. v. Virginia, Luciano, Lucky, 287
261, 263 Lying, accusations of, 119
Lando, Barry, 115–16, 152–53
Lapeyrouse Grain Corporation, 99 McBride v. Merrell Dow Pharmaceuticals, 59
Las Vegas, 113–14, 181 McCall, John, 249–50
380 INDEX
McCall v. Courier Journal, 249–50 reporting of, 76–77, 136; falsity and, 93–
McCarthy, Joe, 8–9, 186 94, 113–14, 125–26, 128, 153; group
McCarthy, Mary, 80 defamation and, 109–11; illegal use of
McDermott, James, 263–64 information by, 256–69, 355(nn9, 10, 11),
Machleder, Irving, 221 356(n33); immunity of, 180–82; improper
Machleder v. Diaz, 220–21, 223, 224, 236 tactics of, 217–18; intrusiveness of, 227–28;
McNamara, Larry, 220 invasion of privacy and, 195–201, 252–53;
McNamara v. Freedom Newspapers, Inc., 220, 236 liability of, 62, 63–64; malice standard
Mad Cow Disease, 110 applied to, 92–93; misconduct of, 218–19;
Mafia, and Las Vegas, 113 misrepresentation by, 220–21; negligence
Malcolm, Janet, 129 by, 210–11; neutral reporting of, 133–34,
Malice, 99, 100, 122, 123, 136, 140, 142; 136; private facts and, 207–8; prisoner
against businesses, 93–94; media reporting interviews and, 259–60; procedural reform
and, 92–93; petitions, 51–52; proving, 46, and, 169–70; promises made by, 237–44;
47, 53, 56, 61, 62, 65, 77, 114, 130, 139, public disclosure of private facts in, 202–3,
143–44, 149–51, 154–55, 156, 181, 182, 214–15, 339(n29), 346(n46), 347(n54);
255, 267, 278, 281, 285; public figures public records and, 211–12, 237–38; rape
and, 37, 39, 41, 45, 51–52, 63, 66 victims and, 208–9, 346(n28); reporting on
Malpractice, 198, 246–47 police action by, 61–62; sources of material
Manual Enterprises v. Day, 116 and, 115–16; standard of care of, 116–17,
Maple Heights High School, 119 149, 150; on truth and libel suits, 89–90;
Maple Heights (Ohio), 119 unauthorized interviewing by, 248–49
Marcinkus, Paul, 290 Medical Economics (magazine), 198
Marcinkus v. NAL Publishing, Inc., 290 Medical information: privacy and, 207, 214,
Marcone, Frank, 65 227, 239–40, 344–45(n9); public
Marcone v. Penthouse International, 65 disclosure of, 202, 203, 205
Mark, Albert, 228 Medical laboratories, 94, 250
Mark Hopkins College, 59–60 Medical Laboratory Consultants (MLC), 250
Mark v. The Seattle Times, 228 Medical profession, disparagement in, 100,
Marriage, privacy issues in, 199–200 198–99
Martin, Alice, 263 Medical research, 127
Martin, George, 134–35 Medical training schools, 91
Martin, John, 263 Medicare fraud, 228, 246–47
Martin Marietta, 86 Medicine: illegal practice of, 245–46;
Martin Marietta v. Evening Star Newspaper Co., malpractice in, 246–47
88 Mehrkens, Mandy, 226
Martin v. Wilson Publishing Co., 134–35 Melvin v. Reid, 201
Massachusetts, 71, 76, 121–22, 239 Memphis Times (newspaper), 181
Massachusetts Department of Public Welfare, 121 Mental institutions, 239
Masson, Jeffrey, 129, 130 Mentally handicapped, 206
Masson v. New Yorker Magazine, 129, 130, 131 Meredith, James, 46
“Match Set” (Petrocelli), 285–86 Metcalf, Jackie, 245
Matter of Medical Laboratory Consultants, 250 Metromedia, 61
Matus, Raymond, 101 Miami Airport, 219–20
Matus v. Triangle Publications, Inc., 101 Miami Beach Chamber of Commerce, 8
Maule v. NYM Corp, 79 Miami Herald (newspaper), 170, 171
Media, 81, 88, 100, 101, 158, 177, 183, Miami Herald Publishing Co. v. Tornillio, 170,
191, 350(nn6, 7, 8); access to, 67–68; 171
accident coverage in, 229–30; bystanders Michigan, 111, 122, 129; on eavesdropping,
and, 219–20; celebrities and, 198–99; 248–49; “privatization” in, 69–70
correction by, 162–63; deception, 222–23, Michigan United Conservation Clubs v. CBS,
246–47; and espionage stories, 72–73; 111
excesses of, 216–19; fair and accurate Military, public controversy over, 69
INDEX 381
Military training, 220 privacy issues in, 207–8; reporting on,

Milkovich, Michael, 119 200–201
Milkovich v. Lorain Journal Co., 119, 124, 127 Murphy, Eddie, 206
Mill, John Stuart, 13
Miller, Brownie, 225 Narcotics cases, bribery in, 249–50
Miller, Dave, 225 National Audubon Society, 132, 133, 134, 136
Miller v. National Broadcasting Co., 225 National Broadcasting Company (NBC), 59,
Milton, John, 13 113–14, 225, 240
Minneapolis Star & Tribune (newspaper), 237– National Enquirer (magazine), 206, 218, 232
38 National Labor Relations Act, 51
Minnesota, 241, 248, 252; political campaigns Natoli, Robert, 262, 263
in, 237–38 Natoli v. Sullivan, 262, 263, 268
Minnesota Supreme Court, 238 Negligence, 306–7; doctrine of, 209–10; of
Misconduct, of media, 218–19 media, 210–11; proof of, 157, 278; of
Misquotation, 130 reporters, 218–19; standard of, 95–96, 144
Misrepresentation: innocent, 307–8; in Nelson, Jerry, 99
photographs, 219–20; in television reports, Nelson, Ronald, 62
220–21, 240 Nelson v. Lapeyouse Grain Corp., 99
Miss America contest, Penthouse spoof of, 276– Neutral reportage, 132–37
78, 279, 335(n49) Newark, 221
Miss America Pageant v. Penthouse International, New England Mutual Life Insurance Co., 192
Ltd., 276–78, 279 Newhall, Elizabeth, 300, 301
Missing (film), 284–85 Newhall, James, 300, 301
Mississippi, 206, 212 New Hampshire, 37, 41–42
Missouri, 71, 79; false statements in, 119–20; New Jersey, 221
on infliction of emotional distress, 210–11 New Jersey Supreme Court, malice require-
Missouri Supreme Court, 227 ment, 92–94
Misstatements, negligent, 306–7 New Orleans, 15
Mitchell, Gwen, “Touching,” 288–89 Newport Beach, 197
Mitchell, Nellie, 142, 145 News America, 138
Mitchell v. Globe International Publishing, Inc., Newspapers, 119, 129, 140, 261; classified
142 documents and, 256–57; false accusations
MLC. See Medical Laboratory Consultants by, 93–94; gossip reported by, 55–56;
MMI, 65 personal ads in, 112–13; private facts
Mobil Corporation, 89, 90 reported in, 205–6
Mobile Crisis Intervention Team, 248 Newsworthy statements, 134, 135–36
Mobile Press Register (newspaper), 90 Newton, Wayne, 113–14
Moldea v. New York Times Co., 120 Newton v. National Broadcasting Co., 113–14
Monitor Patriot Co. v. Roy, 37–38 New York (state), 91, 127, 205, 226, 241, 286;
Montana, 253 on public figures, 79, 80; right to privacy in,
Montgomery (Ala.), 11, 12 192, 217; wiretapping in, 262–63
Moore, Sara Jane, 196 New York City, 72–73
Morgan, Elizabeth, 49–50 New York Court of Appeals, 139; on fiction
Morrison, Jeanette, 199 resembling fact, 280–81
Morrow, Robert, 83 New York Department of Insurance, 91
Moss, Frank, 40 New Yorker magazine, 129; on William Sidis,
Mountain Home (Ark.), 142 195–96
Movies. See Films New York Times (newspaper): and civil-rights
Mullen, Michael, 100 movement, 11–12; DDT controversy and,
Mullen v. Solber, 100 132–33; Pentagon Papers and, 256, 257
Multimedia WMAZ, Inc. v. Kubach, 239–40 New York Times Co. v. Sullivan, 2, 16, 24, 41,
Murders, 62, 74, 310; of abortion doctors, 42, 51, 64, 76, 77, 98, 102, 109, 131, 165,
299–300; accusations of, 75, 76–77; 166, 167, 175, 187, 251, 278, 296;
382 INDEX
allowable damages and, 168–69; constitu- Organized crime: accused ties to, 80–81, 125;
tional privilege in, 85, 157; criticism of public figures and, 75, 113–14, 324(n15)
government in, 28, 93; on defamation, 37, Osborne, John, 295, 296
49, 71, 81, 92, 108; on false advertising, Oswego (N.Y.), 262
112–13; on government protection, 68, 73, Oswegonian (newspaper), 263
74; malice requirement in, 45, 46, 47, 63, 114,
122, 136, 139, 143, 149, 255, 267; on public Palladium Times (newspaper), 263
figures, 38, 39, 44, 50, 54, 75, 79, 135; Palm Beach, 56, 57
protection under, 43, 158; Supreme Court Pamphleteers, 182
ruling on, 12–15, 149–50; use of, 183, 184 Paparazzi: California statute against, 230–31;
New York Times Co. v. United States. See invasion of privacy by, 216–17, 223
Pentagon Papers case Parody, 78–79, 119, 123, 238, 289
New Zealand, 19 Paternity issues, privacy of, 206
Niedorf, Craig, 260 Patterson, George, 299
Night watchman, 42, 43, 93, 156 Patton, George S., 287
Nixon, Richard, 54, 289 Pavesich, Paolo, 192
Nonprofit agencies, 90 Pavesich v. New England Life Ins. Co., 192
North Carolina, 205–6, 252; Food Lion in, Pearson, Drew, 262
250–51 Pearson v. Dodd, 262
Notoriety, crime and, 74–75 Peavy, Carver Dan, 267–68
Novels, persons represented in, 280–81, 283– Peavy v. WFAA-TV, 267–68
84, 285–87 Pell v. Procunier, 259, 260
Novi Ambulance v. Farmington Observer, 71 Pennsylvania, 61, 91, 206; cellular phone
Nuccio, Richard, 62, 64 interceptions in, 264–65; right to privacy in,
Nuclear power plant, 228 139, 218; shield law in, 125–26
Nude marathons, 288, 289 Pennsylvania Department of Insurance, 91
Nudity: association with, 57–58; private, 206, Pennsylvania Supreme Court, state shield law
207, 214 and, 125–26
Penosi, Guido, 113
Oakland Tribune (newspaper), 202–3 Pentagon Papers case, 256–57, 355(n9)
O’Brien, Lawrence, 83 Penthouse magazine, 65, 69; Miss America
Obscenity laws, 61, 62, 116 pageant spoof by, 276–79
Ocala Star-Banner (newspaper), 38–39, 180–81 Peoples Bank & Trust Co. v. Globe International
Ocala Star-Banner Co. v. Damron, 38–39, Publishing, Inc., 142(nn17, 19)
180–81, 182 Perjury, 25
Official misconduct, exposure of, 28–29 Pesticides, 132–33
Ohio, 119; age discrimination suit in, 135–36; Petitions, constitutional privilege and, 51–52
judicial bribery case in, 153–55 Petrocelli, Orlando, “Match Set,” 285–86
Ohio River, 140 Pfeiffer, Jack, 260–61
Oil and gas industry, 89, 90, 242–43 Pfeiffer v. Central Intelligence Agency, 260–61
Oklahoma, 228, 242–43 Philadelphia, 61
Oklahoma City, 294, 298 Philadelphia Inquirer (newspaper), 125
Old Dominion Branch No. 496 v. Austin, 118, 119 Philadelphia Newspapers, Inc. v. Hepps, 125–
Ollman v. Evans, 120–21, 127 26, 128, 179, 187
O’Mara, Jonathan, 303 Photographs, 351(n26); and property rights,
Onassis, Jacqueline, 216–17 233–34, 235–36; from public places, 231–
Oneida Dispatch, 112 33, 349(nn35, 36, 37); in public settings,
Open Records Act, 205 219–20, 348(n32); unauthorized use of,
Opinions, 118, 309; Internet, 295–96; 142, 206, 227, 228, 348(n27)
nonactionable, 120–21, 124 Photojournalists, aggressive, 216–17, 223
Oral comments, 20 PHRACK (hacker publication), 260
Oregon, 58 Physicians, as public figures, 59, 81
Oregon Supreme Court, 99 Pierson, James, 220
INDEX 383
Pierson v. News Group Publications, Inc., 220 230–31; photographs and, 231–34;
Plaintiffs, 21, 149, 158, 179; and burden of published articles and, 197–98; of rape
proof in falsehood cases, 125–28, 129; in victims, 207–9, 211, 346(nn28, 42); right
civil actions, 23–24; constitutional privilege to, 1, 3, 191–92, 227, 234, 346(n31);
and, 32–33; litigation expenses of, 174–76; truth and, 308–9
litigation phases and, 163–64, 166–67; Private facts: Internet disclosure of, 297–98;
redress of, 173–74; vindication of, 167–68 protection of, 206–7; publication of, 197–
Planned Parenthood v. American Coalition of Life 98; public disclosure of, 200, 201, 202–15,
Activists, 300–302, 304 229–30, 246, 339(n29), 345(n22),
Plastic surgeons, as private citizens, 50–51 347(n54)
Plastic surgery, 240 Private issues, 196–97, 235
Playboy magazine, 75 Private organizations, 136
Plays, 139, 284 Private persons, 53, 57, 64, 73, 122, 124,
Podiatry, 91 136, 139, 144, 182, 191, 192, 227;
Polakoff, Moses, 287, 290 criticism by, 186–87; and defamation suits,
Polakoff v. Harcourt Brace, 287, 290, 299 50–51, 114; fictional depictions of, 287–
Police actions, reporting on, 61–62, 181 88, 290; public funds and, 67–68; public
Police officers, as public officials, 43 issues and, 156, 157, 172; salacious gossip
Political campaigns, 40; and public figures, 37– and, 101–2
39; wire tapping and, 262–63 Private domain, 3; defamation in, 93, 99–101
Political office, defamation and, 37–38 Private property, 226, 232; public photographs
Politics, 186; Internet gossip and, 291–92 of, 219, 231, 351(n26); trespass on, 225,
Pollution, causes of, 82, 85 227, 228, 245–46, 247, 248, 250–51,
Pornography, 4, 121, 122–23, 124, 278 360(n26)
Portuguese Americans, 51 Private space, protection of, 227
Posner, Richard, 86, 87, 213 Privilege: in common law, 21–22; neutral
Posters, antiabortionists use of, 299, 300 reporting and, 133–34. See also Constitu-
Post Office Department, 116 tional privilege
Potash Brothers, 250 Product disparagement, 22–23, 305
Povitch, Maury, 241 Professional misconduct, 100
Prahl v. Brosamle, 228 Promise: breach of, 237–44; false, 247–48
“Pregnancy Forces Granny to Quit Work at Age “The Promised Land” (Lemann), 212–13
101,” 142 Property rights, photographs and, 233–34,
Presley, Elvis, 55, 56, 101, 102, 181, 182 235–36
Press: immunity of, 180–82; public record use Proprietary information, in contracts, 242–43
in, 237–38. See also Media Prostitution, 81, 83, 145, 201
Press Publishing Co., 140–41 Proxmire, Senator, 67, 68
Primrose Path (film), 284 Psychic harm, 2, 3
Pring, Kimerli Jayne, 276–77, 335(n49) Psychic phone lines, 252–53
Pring v. Penthouse International, 276–78, 279, Psychoanalysis, 129
286, 335(n49) Psychologists, 44
Prison inmates, 220, 249, 282; media Psychotherapy, 239, 288–89
interviews with, 259–60; suicide attempt of, Public, 28; and free flow of information, 158–59
74–75 Public choice theory, 28
Privacy, 212, 214, 239, 304, 344–45(n9), Public debate, 52, 159
351(n34); accident scenes and, 229–30; Public disclosure, 3; of private facts, 200, 201,
communications and, 98–99; crime and, 202–6, 339(n29), 347(n54); protection
199–201; false light, 24, 138–46, 192–93, from, 206–8
199, 296–98, 307–8, 335(n49), Public figures, 42, 43, 71, 76, 77, 100, 124,
338(n21), 339(n30); informational, 194, 144, 177, 203, 278, 324(n15), 327(n6);
205–7; invasion of, 2, 4, 195–96, 217–18, celebrities as, 55–56, 198–99; constitutional
222, 225, 226, 248–49, 252–53, 287, privilege and, 185–86; corporations as, 86–
306–7, 308; paparazzi and, 216–17, 223, 88; defamation of, 37–38, 51–52; defining,
384 INDEX
58, 78–82; entrepreneurs as, 90–91; in Ray, William, 245

fictional settings, 289, 290; invasion of Reader’s Digest Association, 73
privacy and, 195–96, 216–17; involuntary, Real estate development, 70, 118, 134–35
82–84, 85, 326(n37); irrelevant, 80–82; Rebozo, Charles (Bebe), 54
journalistic defamation and, 115–16; lawyers Rebozo v. Washington Post, 54
as, 65–66; limiting scope of, 49–50; malice Recovery, in defamation cases, 125, 164, 176
requirement and, 39, 47, 143, 149, 156, Recreational facilities, 41
182; in public settings, 234–35; salacious Red-baiting, 186
gossip and, 101–2; status as, 41, 44, 51, Reflector-Herald (newspaper), 135–36
54–55; suicide and, 74–75; witnesses as, Reform, procedural, 166–71
59–60; writers as, 79–80 Regulation, government, 91–92
Public funds, 81 Reliance Insurance Company, 87
Public health, 76, 91, 110, 111, 228, 250 Reliance Insurance Co. v. Barron’s, 87, 88, 91
Public issues, 55; crime as, 200–201; gossip Religion, privacy of, 206–7
and, 102–3; and private persons, 114, 124, Religious cults, 91
156, 157, 172 Reportage, neutral, 133–34, 136–37
Publicity, 75, 139, 143, 196, 199; adverse, Reporting: crime, 200–201; fair and accurate,
71, 73, 79, 235; children and, 310–11 136, 144–45; inaccurate, 181–82; on rape,
Publicity seeking, 58–59, 74 207, 208–9
Public office, candidates for, 151–52, 156, Representations, by corporations, 88–89
170, 180–81, 237–38 Reputation, 10, 130; impairment of, 140–41;
Public record: disclosure of, 212–13, 345n22; vindication of, 167–68
media use of, 209, 210, 237–38, 261; Research, publicly funded, 67
scope of, 211–12 Restatement of Torts: on confidentiality, 241;
Public schools, 43 false light privacy in, 192–93
Public scrutiny, 69–70, 144, 221 Restatement of Unfair Competition, 243
Public services, and private citizens, 68–69 Restaurants, 227–28
Public settings: photographs in, 231–32, Retraction, 165–66, 173
348(n32); privacy in, 219–20, 222; and Rety, Denis, 7–8
private space, 228, 351(n26); and public Rety v. Green, 8, 182
figures, 234–35 Rhode Island, 51, 134–35
Public spending, and public figures, 67–68 Rhode Island Supreme Court, 81, 135
Public statements, 69, 101 Rifkin v. Esquire Publishing, 249
Publishers, 21, 143, 155; abuse of government Riggs, Robert, 260, 268
authority and, 27–28; liability of, 115–16; The Right to Privacy (Warren and Brandeis),
responsibilities of, 134, 278–79, 281, 293 191–92
Publishing, 151, 213; material sources, 115– Rimmer, Beryl, 110
16; of photographs, 142, 206; privacy and, Riot, at University of Mississippi, 46, 150–51
191–92, 197–98; of protected information, Rivera, Geraldo, 249
256–61 Riverview Residential Treatment Facilities, 69–70
Riverview Residential Treatment Facilities, Inc. v.
Quebec Charter of Rights, 234 WWMT-Channel 3, 69–70
Quotations, 130, 131 Robbery, 181; victims of, 208–9
Roberson, Abigail, 192
Racism: against African Americans, 107–8; hate Roberson v. Rochester Folding Box Co., 192
speech and, 108–9 Roman Catholic Church, 290
Radio, 101, 265, 294 Romano, Ray, 75
Radio talk shows, 117 Rosanova, Luis, 75
Radziwill, Anthony, 222, 223 Rosanova v. Playboy Enterprises, 75
Rankin, Ronald, 76–77 Rosenblatt, Alfred, 41, 42
Rape victims, 211, 214; privacy of, 207–10, Rosenblatt v. Baer, 42, 45, 81, 108, 110, 111,
346(nn28, 42) 183; as standard, 43, 44, 84, 93
Rational interpretation test, 131 Rosenbloom, George, 61–62
INDEX 385
Rosenbloom v. Metromedia, Inc., 61, 74, 86, Self-government, 31, 98; facilitation of, 26,
101, 143, 169; repudiation of, 62–63, 144 28–30, 95
Ross, Marla, 211 Sellars, James, 44–45
Ross v. Midwest Communications, 211, 214 Sellars v. Stauffer Communications, 44–45
Rouch v. Enquirer & News of Battle Creek, 129 Service Employees International Union, 121
Roy, Alphonse, 37–38 Service stations, 141
Ruebke, Arnold, 74 Sex, association with, 57, 58
Ruebke v. Globe Communications, 74 Sex change operations, 202, 214
Ruggio, William, 262, 263 Sexual behavior, 99, 203–5, 207, 214; as
Rumors, 135, 181–82 humor, 276–77; unwanted, 231–32
Russell, Marylyn, 250 Sexual harassment, 51
Russell v. American Broadcasting Companies, Sexual impropriety, 99, 100
Inc., 250 Sexual identity, 202–3
Ruzicka, Jill, 239 SFX Broadcasting, 122–23
Ruzicka v. Conde Nast Publications, 239, 240 Shannock (R.I.), 134–35
Ryder, Richard J., 80 Sharecroppers, migration of, 212
Ryder, Richard R., 80 Sharon v. Time, Inc., 178
Ryder v. Time, Inc., 80 Shauer, Frederick, 184
Sheets, Gary, 200
Safety, public, 187, 197–98 Sheets, Kathy, 200
St. Amant, Phil A., 151, 152 Sheets v. Salt Lake County, 200
St. Amant v. Thompson, 151, 152 Shield laws, in Pennsylvania, 125
St. Paul Pioneer Press Dispatch (newspaper), Shipping, 89, 90
237–38 Shulman, Ruth, 229–30
Sally Jessy Raphael Show, 248 Shulman v. Group W Productions, Inc., 229–30, 231
Sanders, Mark, 252–53 Sidis, William, 199; invasion of privacy suit,
Sanders v. American Broadcasting Companies, 195–96
Inc., 252–53 Sidis v. F. R. Pub. Corp., 195–96, 199
San Francisco, 196 Silver Bridge, 140
Satire, 275–76 Simon, Andre, 181
Saturday Evening Post, 53, 55, 150 Simpson, E. L., 282
Savell, Van, 151 Simpson, Nicole Brown, 222
Saxenmeyer, Mark, 226 Simpson, O. J., 222, 240
Schomer, Cathleen, 99 Sipple, Oliver, 196, 199
Schomer v. Smidt, 99 Sipple v. Chronicle Publishing Co., 196, 199
School records, privacy of, 206 Sirhan, Sirhan, 83
Schuster v. U.S. News & World Report, Inc., 111 Sisler v. Gannett Co., 93–94(nn55–56)
Scientology, Church of, 248 60 Minutes, 152, 241
Scottsboro boys, 59 Slander, 20, 22, 99, 137, 178
Scottsdale Publishing, 75 Smidt, Douglas, 99
Scottsdale Publishing Inc. v. Superior Court, 75, Smith, Barry, 181
76 Smith, Frank, 201
Scrafford, Joel, 253 Smith, Grace, 201
Scrushy, Leslie, 294, 295 Smith v. California, 14, 116
Scrushy, Richard, 294 Smith v. Daily Mail Publishing Co., 261, 263
Search warrants, 226, 227 Snepp, Frank, 258
Seattle Post-Intelligencer (newspaper), 275–76 Snepp v. United States, 258, 260
Securities and Exchange Commission (SEC), Soble, Jack, 72
91, 294–95 Soble, Myra, 72
Securities industry, 87, 91 Social reform, 215
Sedition, 183 Social workers, 43
Sedition Act (1798), 12 Solar power company, 94
Self-censorship, 153 Solber, Peter, 100
386 INDEX
Solitude, intrusion on, 218 Tavoulareas, Peter, 89

Solomon, Jerry, 232 Tavoulareas, William, 89–90
Solomon, Kathy, 232 Tavoulareas v. Washington Post, 89–90, 91
Solomon v. National Enquirer, Inc., 232, 235 Teamsters Union, 151
Sources, refusal to divulge, 125–26 Teilhaber Manufacturing, 120
South Carolina, 206 Teilhaber Mfg. Co. v. Unarco Materials, 120
South Vietnam, 178, 258 Telephones, 294; intercepted conversations and,
Soviet Union, 72 267–68; wiretapping and, 254, 260, 262–
Spahn, Warren, 141–42 64
Spahn v. Messner, 141–42 Television, 71, 80, 181, 211, 226, 241;
Special Force Ministries v. WCCO TV, 252(n35) accident coverage by, 229–30; ambush
Speech: free, 309–10; commercial, 89; hate, 4, interviews, 246–47; deceptive practices and,
108–9; racist, 107–8 250–51; government raids and, 253–54;
Sperry-Sun Well Surveying, 242–43 improper surveillance by, 217–18;
Spoofs, 274–75, 276–77 involuntary interviews by, 222–23;
Sports hunters, 111 misrepresentation by, 220–21, 240;
Sports Illustrated (magazine), 197–98 negligence by, 95–96; promises made by,
Springer, Lisa, 286–87 239–40; public criticism by, 59, 69–70;
Springer v. Viking Press, 287, 290, 299 unauthorized taping by, 225, 354(n21)
Stahl v. State, 228 Terrorism, 108
Standard of care, media, 116–17, 149–50 Testimony, in bribery cases, 153–54
Standards, Internet, 292–94 Texas, 46, 211; defamation suits in, 81, 110–11
Stanley, Vivien, 282 Texas Beef Group v. Winfrey, 109–10
Star magazine, 138 Texas Supreme Court, 205
“Starving Glutton,” 227 Theft, 99, 100
“State of Grace” (Tine), 286–87 “They Were Expendable” (White), 282
Stauffer Communications, 44–45 Third parties, deception of, 249
Steaks Unlimited, Inc. v. Deaner, 88 Thompson, Alice, 154
Stephens, Patsy, 153–55 Thompson, Henry, 151, 152
Sterilization, 211 Thoroughbred Racing Association, 201
Storage racks, 120 Threats, 22; antiabortionist, 300–302; invasion
Stored Communications Act, 297 of privacy and, 310–11
Store franchises, 125 Thrifty stores, 125
Storer Broadcasting Company, 71 Time, Inc. v. Firestone, 57, 58, 59, 169
Storm, David, 226 Time, Inc. v. Hill, 139, 143–44, 145–46
“The Story of a College Football Fix,” 53 Time, Inc. v. Pape, 130, 131
Street v. National Broadcasting Co., 59 Time magazine, 80, 130, 227, 274; on
Suicide attempts, public settings of, 74–75 Firestone divorce, 56–57
Suicide, 274 Times-Mirror (newspaper), 68, 201
Sullivan, John T., 262–63 Times-Mirror v. Superior Court, 201
Sullivan, L. B., 149; vs. New York Times, 11–14 Tine, Robert, “State of Grace,” 286–87
Sun (newspaper), 142 Titicut Follies (film), 239
Sunday Chronicle (newspaper), 273–74 Tobacco companies, 86
Supermarket News (trade publication), 48 Tolerance, free speech and, 31–32
Suppliers, as private persons, 68–69 Tornillo, Pat, 170
Supreme Court of Canada, 234 “Touching” (Mitchell), 288–89
Supreme Judicial Court of Massachusetts, 121– Trailer Park Residence, 204–5
22, 239 Trammell v. Citizens News Co., 206(n18)
Surfing, 197–98 Trans World Accounts (TWA), 75–76
Surveillance, by journalists, 216–18, 223 Trans World Accounts, Inc. v. Associated Press,
75–76
Tabloids, 76–77, 83, 142, 235 Treason, accusations of, 118
Talk shows, 241; sexual behavior on, 203–5 Treatment centers, criticism of, 69–70
INDEX 387
Trespass, 236; investigative journalism and, privacy, 139–40; Gertz v. Welch, 63–65; on
250–51, 252; on private property, 225, illegally published material, 256–61; proof
226–27, 228, 245–46, 247, 248, of malice and, 149, 150–51, 154–55, 181;
350(nn8, 9), 360(n26) on parody, 78–79; on private facts, 207–8;
Triangle Publications, 101, 201 on private persons, 57, 73; on protected
Truck stops, 141 information, 256–58; on protection of free
Truth, 21, 26, 27, 102, 108, 142, 143, 144; speech, 125–26; on public figures, 41, 51;
ascertainment of, 30–31, 146, 149–50; on public information, 209–10; public
burden of proof and, 125–28; defamation monies and public figures, 67–68; on racist
and, 95, 336(n4); as litigation issues, 177– speech, 107–8, 109; New York Times v.
79; press reporting and, 89–90, 134, 238; Sullivan, 12–15, 149–50; on substantial
privacy and, 308–9; substantial, 129–30, truth, 129–30; Associated Press v. Walker,
131; suppression of, 193–94 46–47
Turf Lawnmower Repair, 92–93 United States v. Alkhabaz, 298–99
Turf Lawnmower Repair v. Bergen Record, 92– United States v. Riggs, 260
93, 95 University of Alabama, 53, 150
TWA. See Trans World Accounts University of Georgia, 53, 55, 150
University of Maryland, 120
U-Haul, 295, 296 University of Michigan, 298
Ulland, Sam, 248 University of Mississippi, 46, 150–51
Unarco Materials, 120 University of Notre Dame, 276
Unfair and Deceptive Trade Practices Act, 251 University of Notre Dame v. Twentieth Century
Unions. See Credit unions; Labor unions Fox, 276
Unisys Corporation, 231 Univision, 240
U.S. Army, 46; war crime accusations, 152–53 The Untouchables (television show), 282
U.S. Commission on Civil Rights, 130, 131
U.S. Court of Appeals for the District of Vaill, Karen, 112–13
Columbia, 48, 82, 90, 120 Vaill v. Oneida Dispatch, 112–13, 116, 299
U.S. Court of Appeals for the First Circuit, 44 Van Straten, Dennis, 74–75
U.S. Court of Appeals for the Second Circuit: Van Straten v. Milwaukee Journal Newspaper–
on invasion of privacy, 195–96 Publisher, 74–75
U.S. Court of Appeals for the Third Circuit, 61 Vatican Bank, 290
U.S. Court of Appeals for the Fourth Circuit, Veilleux, Raymond, 240
49, 251–52 Veilleux v. National Broadcasting Co., 240
U.S. Court of Appeals for the Fifth Circuit, 53 Veribanc, 91
U.S. Court of Appeals for the Eighth Circuit, Vermont, 97, 99
142 Vermont Supreme Court, 59–60, 97
U.S. Court of Appeals for the Tenth Circuit, 40 Veterans Administration (VA) hospital, 44
U.S. Department of Defense, 86 Victims: crime, 199–201, 209, 219; of
U.S. Department of Justice, 257 defamation, 1, 9–10, 157–58, 162; of libel
U.S. Healthcare, 89, 217 and slander, 20–21; press negligence and,
U.S. Healthcare v. Blue Cross of Greater 210–11; privacy of, 207–8; public
Philadelphia, 89 compensation of, 184–85
U.S. Naval Intelligence, 287 Videotaping: of accidents, 228, 229–30;
U.S. Supreme Court, 2–3, 25, 39, 42, 53, 70, unauthorized, 222–23, 225, 226, 227,
94, 100, 118, 119, 124, 131, 187, 194, 245–46, 248–49, 250–51, 252–53,
238; on cellular phone interceptions, 264– 350(n11), 351(n27), 354(n21)
66; on constitutional privilege, 161–71; Vietnam War, 55, 336(n4)
Rosenbloom v. Metromedia, 61–63; on Violence, threats of, 108–9
criminal libel, 15–16; on damage limita- Virgil, Michael, 197–98
tions, 97–98; on defamation, 16–17, 33, Virgil v. Time, Inc., 197–98
37–38; on falsehood and burden of proof, Virginia, 51
126–27, 151–52, 153; on false light Virginia v. Black, 303
388 INDEX
Waldbaum, Eric, 48–49, 52, 82 Wiegel v. Capital Times, 85

Waldbaum v. Fairchild Publications, Inc., 48– Wiemer, Irvin, 76–77
49, 50, 51, 52, 78, 79, 80, 81–82, 90, 91 Wiemer v. Rankin, 76–77
Walker, Edwin, 46–47, 53, 150–51 Wigand, Jeffrey, 241, 243
Wallace, Mike, 152 WILK, 265, 266
War crimes, accusations of, 152–53 Wilkonson, Thomas, 19
Warner, Gary, 79 Wilkonson v. Downton, 19, 23
Warner Brothers Pictures v. Stanley, 283 Wilson, Stephen, 217, 218
Warner v. Kansas City Star, 79 Wilson Publishing, 134–35
Warren, Earl, 47, 53, 54 Winfrey, Oprah, 109–10
Warren, Samuel D., The Right to Privacy, 191– Wiretap Act, 296, 297
92 Wiretapping, 254, 260, 296, 351(n32);
Washington, Mt., 82 cellular phones and, 263–66; as illegal,
Washington, D.C., 73 262–64; illegally gained information from,
Washingtonian magazine, 82, 85 267–68
Washington National Airport, 82 Wisconsin, 74–75, 82, 228, 247
Washington Post (newspaper), 89–90, 256, 257 Wiseman, Frederick, 239
Watergate, 80, 83–84 Witnesses, as public figures, 59–60
Watson, Emmett, 275–76 WMAZ, 239–40
Wayne, John, 282 Wolfson, Nancy, 217
Weather, Mt., 82 Wolfson v. Lewis, 217–18, 223
Websites. See Internet Wolston, Ilya, 72–73, 156
Wechsler, Herbert, 15 Wolston v. Reader’s Digest Association, 73, 74,
“Wedge” beach, 197–98 77, 85
Welch, Robert, 62, 63–64 Wood, Anita. See Brewer, Anita Wood
Wells, Ida, 83–84 Woodrum, Glenda, 295, 296
Wells v. Liddy, 83–84 Words, commonplace crimes and, 25
Westmoreland, General, 178 Workplace, privacy of, 252–53
Westmoreland v. CBS, Inc., 178 Wrestling matches, 119
West Pittston, 80 Wright family, 283–84
WFAA-TV, 268 Wright v. R.K.O. Radio Pictures, 283–84
Wheeler v. Green, 58 Writers, as public figures, 79–80
Whistleblowers, as public figures, 49 Wyoming Valley West School District, 264, 266
White, William, “They Were Expendable,” 282
White Circle League, 107 Yahoo! Finance message board, 294
Whitemarsh (Penn.), 139 Yankee Doodle Dandy (film), 283
White-Stevens, Robert, 132, 133 Yellowstone Lake (Wisc.), pollution in, 82, 85
White v. Mobile Press Register, 90 Y.G., 227
Whitney, Wheelock, 237 Y.G. and L.G. v. Jewish Hospital of St. Louis,
Whittle, Amanda, 226 227
Whittle, Jennifer, 226 YMCA, 81
“Who Let This Doctor in the O.R.? A Story of a Yokum, Jack, 265
Fatal Breakdown in Medical Policing,” 198
Wichita, 87 Zeran, Kenneth, 294, 296
Wiegel, Joseph, 82, 85 Zeran v. America Online, 294, 296, 298, 299

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INSULT TO INJURY

LIBEL, SLANDER, AND INVASIONS OF PRIVACY

Published by the University Press of Colorado

All rights reserved

The University Press of Colorado is a proud member of

The University Press of Colorado is a cooperative publishing enterprise supported, in part, by

Library of Congress Cataloging-in-Publication Data

18 La Cosa Nostra at Your Service, 125

I W I S H T O T H A N K M Y C O L L E A G U E S at Columbia Law School for their helpful

F O R M O R E T H A N S I X C E N T U R I E S , the Anglo-American legal system has pro-

intertwined with either defamation or invasion of privacy. They can be dis-

THE MAN WHO HAD TO LEAVE TOWN

R E T Y V . G R E E N I S A D M I T T E D L Y A N E X T R E M E E X A M P L E , but it is hardly unique.

played such an important role, countless lives were ruined by unfounded or

T H E O B J E C T I V E O F T H E L AW O F D E FA M AT I O N is to protect reputations against

“HEED THEIR RISING VOICES”

O N M A R C H 29, 1960, T H E N E W Y O R K T I M E S carried a full-page adver-

At the heart of the Court’s reasoning were two propositions—one about

potential libel, of the officials of whom the government is composed.” Such an

protecting reputation against harmful and unjustified disparagement and the

AN UNCOMMON COMMON LAW

STUDENTS OF PRIMITIVE SOCIETY have traced the inception of law to the

A S TAT E M E N T I S D E FA M AT O R Y if it “tends so to harm the reputation of another

“fascist” or a “bastard” or otherwise contemptible.7 As long as the statement is

Others were “qualified,” affording protection in certain contexts if defendant

OTHER CIVIL ACTIONS

tinction between the two actions is necessary. Product disparagement cases,

Intentional Infliction of Emotional Distress

Interference with Contract or Business Advantage

THE FIRST AMENDMENT

F R E E D O M O F E X P R E S S I O N I S C O M M O N L Y V I E W E D as advancing four inter-

recipients of paintings and music created by felonious artists and musicians.

ABUSES OF GOVERNMENT AUTHORITY

is a media enterprise. But the principal beneficiary is the community at large,

importance even in instances in which no government official is chargeable

OTHER FREE SPEECH JUSTIFICATIONS

not be germane to issues of self-government. Indeed, defamatory utterances

pertaining to fault, to measure of damages, and to proof of falsity are inappli-

ANYTHING THAT TOUCHES

I N T H E 1960 N E W H A M P S H I R E P R I M A R Y , Alphonse Roy was a candidate

O N T H E S A M E D AY T H E C O U R T D E C I D E D R O Y , it also ruled on a state court

R O Y A N D D A M R O N W E R E D E C I D E D I N 1971. Since that date, countless

Occasionally, a court goes astray. In Lawrence v. Moss,16 Frank Moss op-

THE TALE OF THE FURTIVE NIGHT WATCHMAN

I N N E W Y O R K T I M E S , an elected city commissioner was held to be a public

To this comment the Court attached a footnote disclaiming an intent to

AS REGARDS APPOINTEES TO THE UPPER ECHELONS OF GOVERNMENT—

INTO THE VORTEX OF PUBLIC CONTROVERSY

G E N E R A L E D W I N W A L K E R H A D R E S I G N E D from a career in the U.S. Army to

reporting adhered to by responsible publishers.”3 Harlan and his colleagues

Chief Justice Warren’s position has gained acceptance in subsequent Supreme

Misstatements wholly unrelated to the controversy, however, do not receive the

I N V O K I N G T H E A P P R O A C H O F W A L K E R A N D W A L D B A U M can pose a hazard

P R O M I N E N T PA R T I C I PA N T S I N P U B L I C D E B AT E S are properly classified as pub-

THE BIG FOOTBALL FIX

W A L LY B U T T S WA S T H E AT H L E T I C D I R E C T O R at the University of Georgia, a

The chief justice’s commentary includes an array of disparate ideas. First

person—famous because of her artistic, athletic, or other public persona—

T H E A P P R O A C H O F B U T T S has generated a bewildering array of opinions hold-