the final analysis, whether disclosed facts are to be held public property depends upon a weighing of all the factors in favor of the free circulation of information against the individual's desire to avoid notoriety.
Plaintiff, having conceded that the story of his conviction and pardon were public property at the time they occurred, argues that since the matter had lain dormant from 1940 until 1952, a period of twelve years, it had become 'stale news.' In view of the radio publication in 1948, plaintiff's affairs had, on his own admission, been out of the public eye only since 1948 or for four years preceding the defendant's telecast. Plaintiff's counsel did not attempt to draw a line as to when matters of current interest become 'stale news.' Although news value is one of the bases for the privilege to publish, this court prefers the broader test of 'public or general interest,' advocated by Warren and Brandeis, supra, at 214. This court holds, as a matter of law, that a criminal proceeding widely publicized for a period of at least eight years and containing elements of decided popular appeal does not lose its general public interest in a period of four years or even twelve years;
hence, republication in a reasonable manner was privileged.
(4) Since it has been concluded that the facts of plaintiff's past life were not private affairs and that there was no invasion of plaintiff's privacy by defendant, it is not necessary to disposition of the motion to determine whether the publication was in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities, which plaintiff urges as an unresolved material issue of fact on which reasonable men might differ. Otherwise, despite the affidavits in support of plaintiff's opposition to the motion stating the reaction of third persons to defendant's telecast, this court would be inclined to rule, as a matter of law, that the telecast was not offensive to one of ordinary sensibilities in plaintiff's position.
The program of January 18, 1952, although sponsored commercially,
was one of general interest. It did not single out plaintiff to expose him to public scorn, but was one of a series of television plays devoted to retelling in fictionalized form the stories of newspaper reporters who had done excellent work in promoting justice. As the New Yorker sketch in the Sidis case, supra, might be of current public value in pointing out to parents the unhappy results of forcing a child prodigy into public notoriety, 'The Big Story' program was of current public value in demonstrating how an alert reporter, who has an interest in seeing the right prevail, may help an innocent man escape the unhappy consequences of a wrongful conviction, and perhaps might inspire some other reporter to greater efforts or some young person to embrace a newspaper career. There was a careful and honest attempt to conceal the identity of all persons save the reporter, and the facts of the case were sufficiently changed to avoid duplication of the actual proceeding. That the concealment of plaintiff's identity was accomplished is attested by plaintiff's own allegations showing that only those who knew the story recognized it. The convicted man was shown as an entirely sympathetic character, innocent, wrongfully accused, inadequately defended, convicted on flimsy evidence, and saved from a gross miscarriage of justice in the nick of time. The picture painted was more favorable than the facts of record.
If plaintiff had wished to publicize his innocence to those who knew of his conviction but had never heard of his pardon, he could have chosen no more effective means than a popular nation-wide television network program.
If anyone's sensibilities should have been wounded by the play, it was the judge, the detectives, and the trial counsel, whose parts were given such unsympathetic treatment as to be defamatory, had there been identification. The whole atmosphere of the trial, as portrayed in the telecast, was not such as to inspire viewers with confidence in the administration of justice in the District of Columbia.
Plaintiff's counsel, having agreed at a lengthy pre-trial conference held when the case was referred to this court for trial, that it is a proper one for summary judgment, no material issue of fact being presented and the outcome depending upon the determination of questions of law, has included in his opposition to the motion for summary judgment a lengthy list of issues of fact which he now conceives to exist and deems material.
These deal, in general, with the place and method of publication of the telecast by defendant; the principal place of publication; plaintiff's domicil; whether plaintiff was looking for work in Washington at the time of the telecast; whether the telecast was based upon facts disclosed by public records, newspapers, by plaintiff, or by others with his consent; whether plaintiff consented to prior disclosures; whether the program is properly identified by defendant as 'The Story of Martha Strayer;' whether the program was offensive to persons of ordinary sensibilities and in no way beyond the limitations of decency; whether the disclosure of a commonlaw relationship would be offensive to the ordinary person; whether this relationship was objectionably handled; whether plaintiff had succeeded in forgetting his experience; the psychological soundness or desirability of 'burying' an actual experience; and whether the advertising agency and producer of the 'package' program were independent contractors, leasing television time, so as to insulate NBC from liability for the telecast.
In view of the court's determination on choice of law, the place and method of publication of the telecast by defendant are not material to existence of a cause of action. It has been conceded by plaintiff that his domicil was Virginia at the time of the telecast;
and the court has assumed for the purpose of the motion that plaintiff was looking for work in Washington at the time of the telecast. Plaintiff has conceded that it makes little difference in the matter of liability whether the script was based on public records, newspapers, or disclosures made with the consent of plaintiff.
The court having determined that the facts alleged to have been disclosed were matters of general public interest, it is immaterial whether plaintiff consented to their disclosure. In the absence of privacy and invasion thereof by defendant, the other fact issues listed are also immaterial.
In his supplemental memorandum in opposition to the motion for summary judgment, counsel for plaintiff states there is an issue of fact as to how far the program comported with reality. In the case at bar, on the agreed facts, the answer to this question would not affect the end result. If the telecast adhered to the facts, plaintiff has no cause of action, for there was no actionable invasion of his privacy by use of incidents in his life without identification.
If the telecast was more fiction than fact, plaintiff cannot complain, for there was no identification of him as the central figure by defendant and nothing defamatory.
The court therefore holds that there is no genuine issue of fact material to plaintiff's cause of action and that the case is ripe for summary judgment.
From a review of the many reported decisions involving invasion of privacy, the court concludes that the determination of whether a publication was permissible in the interest of the free dissemination of information or whether it so exceeded the bounds of decency as to invade the individual's privacy depends upon the particular fact situation, and in some cases presents a fact question for the jury. None of the cases is on all four with the case at bar, which may be regarded as a hybrid containing some of the elements present in Melvin v. Reid, and the Mau, Toscani, and Walcher cases, but lacking essential factors of each. The court holds, as a matter of law, that the facts in this case present no actionable invasion of plaintiff's privacy by defendant.
For the foregoing reasons, the court will grant defendant's motion for summary judgment. Counsel will present promptly an appropriate order.