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DRESBACH v. DOUBLEDAY & CO.

July 31, 1981

Lee DRESBACH, Plaintiff,
v.
DOUBLEDAY & COMPANY, INC., et al., Defendants



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

 The libel claim is based upon plaintiff's characterization of the Book as identifying him as a co-conspirator and accessory before and after the fact in the murder of his parents; he asserts that several misstatements of fact in the Book have the effect of accusing him of the murder of his parents. Plaintiff alleges that those statements were either known by the defendants to be untrue or made with a reckless disregard for the truth.

 Both defendants have moved for summary judgment on both counts.

 Invasion of Privacy

 Invasion of privacy was not an early common law action, but was adopted in various forms by courts and legislatures beginning in the early twentieth century on the inspiration of a law review article by Samuel D. Warren and (later to be Justice) Louis D. Brandeis, The Right to Privacy, 4 Harvard L.Rev. 193 (1890). The cause of action described in the article was based on the right "to be let alone", free from the unauthorized publication of matters concerning one's private life, habits, acts, and relations. The injury to be redressed was to the feelings and sensibilities of the person, (rather than to his reputation in the community as in a defamation action), and the truth or falsehood of the publication was irrelevant, as was the ill will or culpability of the author. However, the right of privacy described in the article did not prohibit publication of matter of public or general interest.

 The denomination "invasion of privacy" has since been applied to the unauthorized appropriation of one's name or likeness, (as in advertising), unreasonable invasion into one's seclusion, (such as a "peeping Tom" or electronic surveillance), and to publicity which unreasonably places one in a false light before the public. Restatement of Torts (2d) § 652A. Plaintiff appears to be alleging both the type of invasion originally discussed by Brandeis and Warren, that is, unreasonable publicity to one's private life, and "false light" publicity.

 The tort of invasion of privacy is recognized in the District of Columbia. Bernstein v. National Broadcasting Co., 129 F. Supp. 817 (D.D.C.1955), aff'd, 98 U.S. App. D.C. 112, 232 F.2d 369 (D.C.Cir.1956), cert. denied, 352 U.S. 945, 77 S. Ct. 267, 1 L. Ed. 2d 239 (1956); Afro-American Publishing Co. v. Jaffe, 125 U.S. App. D.C. 70, 366 F.2d 649 (D.C.Cir.1966). To prevail upon a claim for unreasonable publicity to one's private life, the plaintiff must show publication of private facts in which the public has no legitimate concern, whose publication would cause suffering, shame, or humiliation to a person of ordinary sensibilities. This jurisdiction follows Warren and Brandeis' suggested exclusion of matters of legitimate public or general interest from the scope of the unreasonable publicity tort. Elmhurst v. Pearson, 80 U.S. App. D.C. 372, 153 F.2d 467 (D.C.Cir.1946); Pearson v. Dodd, 133 U.S. App. D.C. 279, 410 F.2d 701 (D.C.Cir.), cert. denied, 395 U.S. 947, 89 S. Ct. 2021, 23 L. Ed. 2d 465 (1969). However, one may prevail in a false light invasion of privacy action even where the subject matter is of general or public interest. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S. Ct. 465, 42 L. Ed. 2d 419 (1974). (Upholds plaintiffs' verdict on false light theory without disturbing Court of Appeals' finding, Cantrell v. Forest City Publishing, 484 F.2d 150 (6th Cir. 1973), that the subject matter was of legitimate public interest). Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967). (False reports of matters of public interest may be redressed, if actual malice standard met). Logan v. District of Columbia, 447 F. Supp. 1328 (D.D.C.1978).

 The Supreme Court has clearly held that in order to adequately accommodate First Amendment values in defamation actions, the publication must be shown to be false, and published either with knowledge of its falsity or reckless disregard for its truth or falsity, (actual malice), in the case of a public official or public figure; or with some degree of fault in the case of private individuals. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). The Court has also applied the actual malice standard to a false light case. Time, Inc. v. Hill, supra. However, the Court later characterized as an open question whether the actual malice standard need apply to all false light cases, citing Gertz v. Robert Welch, supra. Cantrell v. Forest City Publishing Co., supra. Time Inc. v. Hill was decided before Gertz, which held that the actual malice standard was not constitutionally required in defamation actions involving private persons, even though the subject matter of the publication could be considered newsworthy. Although the Supreme Court has had no occasion to decide the matter, no reason appears to distinguish false light invasion of privacy actions from defamation actions in this regard. Since the District of Columbia applies a negligence standard to defamation actions involving private individuals, Phillips v. Evening Star Newspaper Co., 424 A.2d 78 (D.C.App.1980), cert. denied, 451 U.S. 989, 101 S. Ct. 2327, 68 L. Ed. 2d 848 (1981), that standard should also be applied to a false light action.

 Despite the Supreme Court's requirement that not just falsity, but negligent, reckless or intentional falsity, be a defense to a defamation action, the Court has not ruled out a cause of action based upon true statements constituting an unwarranted invasion of privacy. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487-491, 95 S. Ct. 1029, 1042-1044, 43 L. Ed. 2d 328 (1975); Time, Inc. v. Hill, supra at 382-384 and n. 7, 87 S. Ct. at 539-540 and n.7; Garrison v. Louisiana, 379 U.S. 64, 70-75, and n. 9, 85 S. Ct. 209, 213-216 and n.9, 13 L. Ed. 2d 125 (1964). In order to protect First Amendment values regarding such statements (which would seem more deserving of protection than the false statements which are the subject of defamation actions), the lower courts have given broad latitude to the exception applied to publications which although possibly revealing private information offensive to the ordinary person, are of public or general interest. E. g. Sidis v. F-R Publishing Corp., 113 F.2d 806, 809-810 (2d Cir.), cert. denied, 311 U.S. 711, 61 S. Ct. 393, 85 L. Ed. 462 (1940) (cited in Garrison v. Louisiana, supra at n. 9); Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980); Elmhurst v. Pearson, supra. In fact it has been suggested that the exception has swallowed the rule. Kalven, Privacy in Tort Law Were Warren and Brandeis Wrong? 31 Law & Contemporary Problems 326, 335-336 (1966); Time, Inc. v. Hill, supra, at n. 7 and cases cited therein.

 In our case, plaintiff asserts that there was no public interest in the subject matter of the Book at the time of its publication in 1980, as opposed to the time of the events described, and that the issues of public interest claimed by defendants to be explored in the Book, such as child abuse, violent youth, and the functioning of the criminal justice system, have nothing to do with plaintiff, and do not justify publication of private facts about him. Facts which plaintiff believes cast him in a bad light and are unnecessary to the stated purposes of the Book include the limited number of visits he made to his brother in jail, his "abandonment" of his brother, his failure to render financial assistance to his brother, the fact that he did not share his inheritance from his parents with his brother, and his concealment of his whereabouts from him. In addition, plaintiff objects generally to the inclusion of private facts about his childhood and his life after the murders, as well as to his appearance as a "central character" in the Book. *fn1"

 While plaintiff disputes the accuracy of some of these disclosures, the truth of some, such as the fact that he did not share his inheritance with his brother, is undenied. (Plaintiff's Deposition at 83-84.) The cause of action as to true statements will be discussed first, followed by the false light aspect of the claim.

 In support of the argument that the passage of time has rendered private subject matter which was admittedly at one time a legitimate subject of public interest, plaintiff cites cases holding that a cause of action may be stated where a publication identifies a rehabilitated criminal with his crime of many years past. Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931); Bernstein v. National Broadcasting Co., supra; Briscoe v. Reader's Digest Association, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971). Melvin v. Reid involved a movie about a woman who eight years previous had been a prostitute and was tried for murder and acquitted. She had since reformed and become a respectable member of society. Many of her present acquaintances did not know of her past. The Court found that although the republication of events in the public record was not actionable, a cause of action for invasion of privacy was stated based upon the use of plaintiff's correct maiden name in connection with unsavory incidents of her past life. A major reason for allowing such an action, in the eyes of the Court, was society's interest in the "rehabilitation of the fallen and the reformation of the criminal." Melvin v. Reid, supra, 297 P. at 93. In Bernstein, while finding no privacy cause of action on the facts of that case, the Court stated that there could be a cause of action for unreasonable public identification of a person in his present setting referring to earlier actions which took place at a time when the plaintiff was a legitimate object of public interest. Briscoe held that the plaintiff has a cause of action for a publication concerning his involvement in a truck hijacking incident eleven years earlier. Plaintiff alleged that he had been completely rehabilitated since, and that he had many friends, as well as a daughter, who were not previously aware of his involvement in that offense. The Court stated that truthful reports about recent crimes are privileged, as are the facts about past crimes. However, identification of the actors in long past crimes, where the actors had done nothing to reattract public attention, could be found by a jury to be without legitimate public interest and grossly offensive to the average person. The Court believed that a jury could find that the article in question concerning truck hijacking would have lost none of its value by deleting the plaintiff's name. An important factor in the decision was the State's interest in the rehabilitative process.

 The State interest in the rehabilitative process was characterized as "most important" in the Briscoe case in a recent California Supreme Court case, Forsher v. Bugliosi, 26 Cal.3d 792, 163 Cal.Rptr. 628, 608 P.2d 716 (1980), stating that Briscoe was "an exception to the more general rule that "once a man has become a public figure, or news, he remains a matter of legitimate recall to the public mind to the end of his ...


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