Hall v. Post

372 S.E.2d 711, 323 N.C. 259, 15 Media L. Rep. (BNA) 2329, 1988 N.C. LEXIS 611

• Court: Supreme Court of North Carolina
• Decided: October 6, 1988
• Docket: 340PA87
• Status: Published

Opinions

MITCHELL, Justice.

In the present case, this Court must decide whether claims for tortious invasion of privacy by truthful public disclosure of “private” facts concerning the plaintiffs are cognizable at law in North Carolina. We hold that they are not and reverse the decision of the Court of Appeals.

The plaintiffs, Susie Hall and her adoptive mother, Mary Hall, brought separate civil actions against the defendants for invasion of privacy. The actions were based upon two articles printed in The Salisbury Post and written by its special assignment reporter, Rose Post. The defendants answered asserting among other things that each plaintiffs complaint failed to state a claim upon which relief could be granted. The defendants moved for summary judgment in both actions, and a consolidated hearing was held on their motions. The trial court entered summary judgment for the defendants in both cases on 20 May 1986.

The plaintiffs’ cases were consolidated for purposes of appeal. The Court of Appeals concluded that summary judgment for the defendants had been improperly granted and reversed the trial court. On 23 June 1987, the defendants petitioned this Court for discretionary review of the decision of the Court of Appeals. On 28 July 1987, we allowed discretionary review.

The pleadings and affidavits forming the forecast of evidence at the hearing on the defendants’ motions for summary judgment tended to establish that, on 18 July 1984, The Salisbury Post published an article by Rose Post which bore the headline “Ex-Carny Seeks Baby Abandoned 17 Years Ago.” The article concerned the search by Lee and Aledith Gottschalk for Aledith’s daughter by a previous marriage, whom she and her former husband had abandoned in Rowan County in September of 1967. The article told of Aledith’s former marriage to a carnival barker named Clarence Maxson, the birth of their daughter in 1967, their abandonment of the child at the age of four months, events in Aledith’s life thereafter, and her return to Rowan County after seventeen years to look for the child. The article indicated that Clarence Maxson had made arrangements in 1967 for a babysitter named Mary Hall to keep the child for a few weeks. Clarence and Aledith then moved on with the carnival, and Clarence later told Aledith that he had signed papers authorizing the baby’s adoption.

Aledith was married to Lee Gottschalk in 1984, and they decided to travel to Rowan County to look for Aledith’s child. The newspaper article of 18 July 1984 related the details of their unsuccessful search and then stated:

If anyone, they say, knows anything about a little blonde baby left here when the county fair closed and the carnies moved on in September 1967, Lee and Aledith Gottschalk can be reached in Room 173 at the Econo Motel.

Shortly after the article was published, the Gottschalks were called at the motel and informed of the child’s identity and whereabouts.

The defendants published a second article on 20 July 1984 reporting that the Gottschalks had located the child with the aid of responses to the earlier article. The second article identified the child as Susie Hall and identified her adoptive mother as Mary Hall. The article related the details of a telephone encounter between the Gottschalks and Mrs. Hall and described the emotions of both families.

The plaintiffs alleged that they fled their home in order to avoid public attention resulting from the articles. Each plaintiff alleged that she sought and received psychiatric care for the emotional and mental distress caused by the incident.

The defendants have contended at all times that the imposition of civil liability for their truthful public disclosure of facts about the plaintiffs would violate the First Amendment to the Constitution of the United States. The defendants have contended in the alternative that this Court should refuse to adopt any tort which imposes liability for such conduct as a part of the common law of this State.

Although the plaintiffs contended before the Court of Appeals that their claims constituted valid claims both for public disclosure of embarrassing private facts and for intrusion upon the plaintiffs’ seclusion or solitude or into their private affairs, we agree with the Court of Appeals that the intrusion branch of the invasion of privacy tort is not involved here. Hall v. Post, 85 N.C. App. at 615, 355 S.E. 2d at 823-24. Therefore, we strictly limit our consideration in the present case to issues concerning the private facts branch of the invasion of privacy tort. We neither consider nor decide whether any other tort is constitutional or cognizable at law upon facts such as those presented here.

It is well known that the concept of a right of privacy recognizable in law appears to have originated in a law review article by Louis D. Brandéis, later a Justice of the Supreme Court of the United States, and his law partner, Samuel D. Warren. Warren & Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). The fact that Brandéis, then only thirty-three years of age, failed to foresee the constitutional problems arising from the views set forth in the article is not very remarkable, since no court in 1890 had held that the First Amendment would be applied to the states through the Fourteenth Amendment. Cf. Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833) (holding that the Bill of Rights did not apply to the states). Indeed, the Supreme Court of the United States did not begin to recognize First Amendment incorporation until the end of the first quarter of the twentieth century. See, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697, 75 L.Ed. 1357 (1931); Fiske v. Kansas, 274 U.S. 380, 71 L.Ed. 1108 (1927); Gitlow v. New York, 268 U.S. 652, 69 L.Ed. 1138 (1925).

In 1916 — twenty-six years after the article on privacy was published — Brandéis became a Justice of the Supreme Court. In a landmark concurring opinion which established his reputation as a constitutional scholar, he fully accepted the doctrine of First Amendment incorporation. Whitney v. California, 274 U.S. 357, 71 L.Ed. 1095 (1927) (Brandéis, J., concurring).

Since the publication of the nineteenth century Warren and Brandéis article in the Harvard Law Review, two different broad categories of privacy rights have evolved. See generally Annotation, Supreme Court’s Views As To The Federal Legal Aspects Of The Right Of Privacy, 43 L.Ed. 2d 871, 875-76 (1975). One is the constitutional right of privacy which protects personal privacy from certain types of governmental intrusion. See, e.g., Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 53 L.Ed. 2d 867 (1977); Roe v. Wade, 410 U.S. 113, 35 L.Ed. 2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed. 2d 510 (1965). The other is the general right of privacy, violations of which have been viewed by some as giving rise to a tort composed of four branches, only one of which is of concern in the present case. This Court has recently acknowledged that, as to this general right to privacy:

A review of the current tort law of all American jurisdictions reveals cases identifying at least four types of invasion' of four different interests in privacy: (1) appropriation, for the defendant’s advantage, of the plaintiffs name or likeness; (2) intrusion upon the plaintiffs seclusion or solitude or into his private affairs; (3) public disclosure of private facts about the plaintiff; and (4) publicity which places the plaintiff in a false light in the public eye. See W. Prosser, Handbook of the Law of Torts § 117 (4th ed. 1971) (emphasis added).

Renwick v. News and Observer, 310 N.C. 312, 322, 312 S.E. 2d 405, 411, cert. denied, 469 U.S. 858, 83 L.Ed. 2d 121 (1984).

In the present case, we consider for the first time that branch of the invasion of privacy tort which is most commonly referred to as the “public disclosure of private facts.” The plaintiffs have at all times acknowledged that the facts published about them by the defendants were true and accurate in every respect, but they contend, nevertheless, that they are entitled to recover.

Under the definition of the private facts tort set out in the Restatement (Second) of Torts, liability will be imposed for publication of “private facts” when “the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Restatement (Second) of Torts § 652D (1977). That definition includes four elements: (1) publicity; (2) private facts; (3) offensiveness; and (4) absence of legitimate public concern. Id,., commentary. With regard to what has become known as the “newsworthiness” or “public interest,” i.e., “legitimate public concern” standard, the Restatement view is that:

In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he has no concern.

Id., Comment h (emphasis added).

Since the American Revolution and our independence, the common law has continued to apply in North Carolina. N.C.G.S. § 4-1 (1986). Unless modified or repealed by the General Assembly or this Court, the “common law” to be applied is the common law of England as it existed when North Carolina became a sovereign State in 1776. Bruton, Attorney General v. Enterprises, Inc., 273 N.C. 399, 417, 160 S.E. 2d 482, 494 (1968). See N.C.G.S. § 4-1 (1986).

The private facts branch of the invasion of privacy tort was not recognized at common law in 1776 or at the times of adoption of either the Constitution or the Bill of Rights. It has never been recognized in England, Australia, New Zealand, Canada, or other jurisdictions sharing the heritage of the English common law. Davis, What Do We Mean By “Right To Privacy”?, 4 S.D.L. Rev. 1, 4 (1959). After an extensive study, the British Committee on Privacy recommended that the invasion of privacy tort not be adopted in Great Britain, because its application would be too difficult and time consuming and would unnecessarily threaten free speech. See generally Report of the Committee on Privacy, Cmd. 5, No. 5012 at 206 (1972), cited with approval in Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291, 335 n.237 (1983) [hereinafter Requiem for a Heavyweight].

Although expressing constitutional and other reservations, this Court has recognized a general right of privacy as a part of the tort law of this State. See Flake v. News Co., 212 N.C. 780, 195 S.E. 55 (1938) (recognizing the “appropriation” branch of the tort). However, we have not recognized or applied either of the two branches of the tort which, because they arise from publicity, most directly affect First Amendment speech and press rights. Quite to the contrary, we have refused to recognize the branch of the invasion of privacy tort arising from publicity by which the defendant places the plaintiff in a false light in the public eye. Renwick v. News and Observer, 310 N.C. 312, 312 S.E. 2d 405. We did so because “false light” claims often would duplicate or overlap existing claims for relief. Id. at 323, 312 S.E. 2d at 412. Additionally, “recognition of a separate [false light] tort . . . would tend to add to the tension already existing between the First Amendment and the law of torts . . . .” Id. For the same reasons, we now hold that claims for invasions of privacy by publication of true but “private” facts are not cognizable at law in this State.

The Supreme Court of the United States has specifically declined to “address the broader question whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 43 L.Ed. 2d 328, 347 (1975) (emphasis added). But see Smith v. Daily Mail Publishing Co., 443 U.S. 97, 61 L.Ed. 2d 399 (1979) (statute prohibiting publication of defendant-juvenile’s name unconstitutional, because state’s interest in protecting juveniles and ensuring their rehabilitation could not overcome defendants’ rights of speech and press); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 56 L.Ed. 2d 1 (1978) (same result and reasoning where statute prohibited publishing information regarding confidential proceedings before state judicial review commission). We do not find it necessary to answer that “broader question” here. It is enough for us to decide here, as we did in Renwick, that adoption of the tort sought by the plaintiffs would add to the existing tensions between the First Amendment and the law of torts and would be of little practical value to anyone.

This action between two non-governmental parties does not involve “a situation in which two constitutional interests must be balanced in apposition, but rather one in which state [tort] laws protecting privacy are constrained by the federal Constitution. The ‘privacy’ interest involved is not a constitutionally protected privacy ...” Rich & Brilliant, Defamation-ImFiction: The Limited Viability Of Alternative Causes Of Action, 52 Brooklyn L. Rev. 1, 20 n.94 (1986) [hereinafter Alternative Causes of Action]. As the constitutional right of privacy is not involved here, a reasonable argument certainly can be made that the First Amendment rights of speech and press control and prohibit recovery in these actions against the defendants for publishing the truth.

Further, the Supreme Court of the United States has consistently held that even false statements which cause actual harm must be given limited “breathing space.” See Requiem for a Heavyweight, 68 Cornell L. Rev. at 313 n.105 (citations to eighteen such cases). To do otherwise would unduly limit the rights of free speech and press by causing writers and speakers to cautiously exercise those rights for fear of liability. Hustler Magazine v. Falwell, 485 U.S. ---, 99 L.Ed. 2d 41 (1988). This in turn would reduce the vigor and limits of public debate. Id. Surely, it would be reasonable to argue that the publication of true statements, such as those made by the defendants, are entitled to no less constitutional protection than that guaranteed false statements.

In several cases the Supreme Court has extended certain defenses required by the First Amendment in defamation cases to other types of tort actions, when the plaintiffs claim arose as a result of the defendants’ writings or speech. E.g., Hustler Magazine v. Falwell, 485 U.S. ---, 99 L.Ed. 2d 41 (intentional infliction of emotional distress); Time, Inc. v. Hill, 385 U.S. 374, 17 L.Ed. 2d 456 (1967) (false light invasion of privacy). Such decisions may be fairly read as at least implying that the same constitutional protection given true statements in defamation actions must also be given to true statements in all other tort actions, when the plaintiff’s claim arises from the defendant’s writings or speech. See Meeropol v. Nizer, 560 F. 2d 1061, 1066 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 54 L.Ed. 2d 756 (1978) (“The same standards of constitutional protection apply to an invasion of privacy and to libel actions.”). Indeed, as we pointed out in Renwick, at least one respected scholar seems to have adopted this same view.

In 1964, the Supreme Court of the United States decided New York Times Co. v. Sullivan, 376 U.S. 254 (1964) which held that the First Amendment itself imposes limitations upon state claims for libel or slander. In 1967, the Supreme Court decided Time, Inc. v. Hill, 385 U.S. 375 (1967) which extended First Amendment protections at least as stringent as those required by Sullivan to defendants in cases for false light invasion of privacy. See Restatement (Second) of Torts § 652E comment d (1977). “By this decision, and others which followed it, the two branches of invasion of privacy which turn on publicity [public disclosure of embarrassing private facts and false light invasions of privacy] were taken over under the Constitutional Privilege. The other two, however, are pretty clearly not.” W. Prosser, Handbook of the Law of Torts, § 118 at 827 (4th Ed. 1971).

Renwick v. News and Observer, 310 N.C. at 324-25, 312 S.E. 2d at 412-13.

“[A] cause of action predicated on public disclosure of private facts depends for its success on the truthfulness of the published material.” Alternative Causes of Action, 52 Brooklyn L. Rev. at 16-17. The Supreme Court of the United States has specifically recognized that “it is here that claims of privacy most directly confront the constitutional freedoms of speech and press.” Cox Broadcasting Corp. v. Cohn, 420 U.S. at 489, 43 L.Ed. 2d at 346 (emphasis added). Thus, it is obvious here, just as it was obvious in Renwick, that the branch of the invasion of privacy tort which the plaintiffs seek to have us adopt is constitutionally suspect and, even if it ultimately manages to survive constitutional review, “would tend to add to the tension already existing between the First Amendment and the law of torts . . . .” Renwick v. News and Observer, 310 N.C. at 323, 312 S.E. 2d at 412.

Additionally, just as was the case in Renwick, the branch of the tort we are asked to adopt here would “duplicate or overlap” other torts. Renwick v. News and Observer, 310 N.C. at 323, 312 S.E. 2d at 412. For example, the private facts tort as defined in the Restatement will, as a practical matter, tend to duplicate or overlap the tort of intentional infliction of emotional distress.

In North Carolina, the tort of intentional infliction of emotional distress,

consists of (1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another. The tort may also exist where defendant’s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress. Recovery may be had for the emotional distress so caused and for any other bodily harm which proximately results from the distress itself.

Dickens v. Puryear, 302 N.C. 437 at 452-53, 276 S.E. 2d 325 at 335 (1981). Although theoretically possible, it is unlikely that a juror would find that a defendant had committed the private facts tort but fail to find that the defendant had intentionally inflicted emotional distress. For example, to find that the defendant publicized a matter “not of legitimate concern to the public” under the definition of the private facts tort, a juror first must find that the defendant publicized it as part of “a morbid and sensational prying into [the plaintiffs private life] ... for its own sake, with which a reasonable member of the public with decent standards, would say he has no concern.” See Restatement (Second) of Torts § 652D Comment h (1977).

Further, to find the private facts tort, the juror must find that the material published would be “highly offensive to a reasonable person.” Id. It seems almost inevitable that a juror having made those findings concerning the private facts tort would also find that the defendant’s conduct was “extreme and outrageous” and that the defendant was recklessly indifferent to the likelihood that he would cause severe emotional distress. Therefore, if a reasonable juror believed that the defendant had committed the private facts tort, it seems clear as a practical matter that the juror would also believe that the same conduct amounted to intentional infliction of emotional distress.

Further, a plaintiff seeking to recover under the private facts tort as defined in the Restatement must always establish three specific additional elements which are not necessary elements of the tort of intentional infliction of emotional distress: (1) publication (2) of private facts (3) which are not “newsworthy,” i.e., not of “legitimate concern to the public” or of “public interest.” Id. Therefore, in almost every instance in which a North Carolina plaintiff could establish a claim under the private facts tort, the same plaintiff could more easily establish a claim for intentional infliction of emotional distress. Since plaintiffs will only be entitled to recover once, if at all, it would seem that recognition of the private facts tort by this Court would deliver nothing of any real value.

The same two basic concerns which prevented our adoption of the tort of false light invasion of privacy strongly favor our rejecting the tort of invasion of privacy by publishing private facts, as to which not even truth is a defense. First, decisions of the Supreme Court of the United States, scholarly articles and the Restatement make it clear that the private facts branch of the invasion of privacy tort is, at the very best, constitutionally suspect. E.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 43 L.Ed. 2d 328; Restatement (Second) of Torts § 652D special note (1977); M. Franklin, The Origins and Constitutionality of Limitations on Truth as a Defense in Tort Law, 16 Stan. L. Rev. 789 (1963-64); Alternative Causes of Action, 52 Brooklyn L. Rev. 1; Requiem for a Heavyweight, 68 Cornell L. Rev. 291; Kalden, Privacy in Tort Law— Were Warren and Brandéis Wrong?, 31 L. & Contemp. Probs. 326 (1966). Therefore, it would be entirely unrealistic to suggest that adoption of the private facts tort would do other than “add to the tension already existing between the First Amendment and the law of torts.” Renwick v. News and Observer, 310 N.C. at 323, 312 S.E. 2d at 412. Second, the constitutionally suspect private facts branch of the invasion of privacy tort will almost never provide a plaintiff with any advantage not duplicated or overlapped by the tort of intentional infliction of emotional distress and possibly by other torts such as trespass or intrusive invasion of privacy. We reemphasize here, however, that in this case we do not consider or decide the “broader question” of whether any other tort is constitutional or cognizable at law upon facts such as those presented here. See generally Cox Broadcasting Corp. v. Cohn, 420 U.S. at 491, 43 L.Ed. 2d at 347.

We conclude that any possible benefits which might accrue to plaintiffs are entirely insufficient to justify adoption of the constitutionally suspect private facts invasion of privacy tort which punishes defendants for the typically American act of broadly proclaiming the truth by speech or writing. Accordingly, we reject the notion of a claim for relief for invasion of privacy by public disclosure of true but “private” facts.

For the foregoing reasons, the decision of the Court of Appeals is reversed.

Reversed.