Briscoe v. Reader's Digest Association, Inc.

• Citation: 4 Cal.3d 529,93 Cal.Rptr. 866,483 P.2d 34
• Court: United States State Supreme Court (California)
• Decision Date: 02 April 1971
• Parties: , 483 P.2d 34, 57 A.L.R.3d 1, 1 Media L. Rep. 1845 Marvin BRISCOE, Plaintiff and Appellant, v. READER'S DIGEST ASSOCIATION, Inc., Defendant and Respondent. L.A. 29813.

Page 866

93 Cal.Rptr. 866

4 Cal.3d 529, 483 P.2d 34, 57 A.L.R.3d 1, 1 Media L. Rep. 1845

Marvin BRISCOE, Plaintiff and Appellant, v. READER'S DIGEST ASSOCIATION, Inc., Defendant and Respondent.

L.A. 29813.

Supreme Court of California In Bank.

April 2, 1971.

Rehearing Denied April 29, 1971.

Carl E. Jones, Beverly Hills, for plaintiff and appellant.

Ball, Hunt, Hart, Brown & Baerwitz, Joseph A. Ball, Long Beach, and Albert H. Ebright, Beverly Hills, for defendant and respondent.

PETERS, Justice.

Plaintiff Marvin Briscoe filed suit against defendant Reader's Digest Association alleging that defendant had willfully and maliciously invaded his privacy by publishing an article which disclosed truthful but embarrassing private facts about plaintiff's past life. A demurrer was sustained without leave to amend, and plaintiff has appealed from the ensuing judgment. Thus, we are presented simply with a pleading problem--does the complaint state a cause of action?

The allegations of the complaint may be summarized as follows: On December 15, 1956, plaintiff and another man hijacked a truck in Danville, Kenucky. '(I) mmediately subsequent to said incident, plaintiff abandoned his life of shame and became entirely rehabilitated and has thereafter at all times lived an exemplary, virtuous and honorable life * * * he has assumed a place in respectable society and made many friends who were not aware of the incident in his earlier life.'

'The Big Business of Hijacking,' published by defendant 11 years after the hijacking incident, commences with a picture whose caption reads, 'Today's highwaymen are looting trucks at a rate of more than $100 million a year. But the truckers have now declared all-out war.' The article describes various truck thefts and the efforts being made to stop such thefts. Dates ranging from 1965 to the time of publication are mentioned throughout the article, but none of the described thefts is itself dated.

One sentence in the article refers to plaintiff: 'Typical of many beginners, Marvin Briscoe and (another man) stole a 'valuable-looking' truck in Danville, Ky., and then fought a gun battle with the local police, only to learn that they had hijacked four bowling-pin spotters.' There is nothing in the article to indicate that the hijacking occurred in 1956.

As the result of defendant's publication, ¹ plaintiff's 11-year-old daughter, as well as his friends, for the first time learned of this incident. They thereafter scorned and abandoned him.

Conceding the truth of the facts published in defendant's article, plaintiff claims that the public disclosure of these private facts has humiliated him and exposed him to contempt and ridicule. Conceding that the Supject of the article may have been 'newsworthy,' he contends that the use of his Name was not, and that the defendant has thus invaded his right to privacy.

The concept of a legal right to privacy was first developed by Warren and Brandeis in their landmark law review article, The Right to Privacy (1890) 4 Harv.L.Rev. 193. Warren and Brandeis characterized the right to privacy as the individual's 'right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.' (Id., at p. 198; see also A. Westin, Privacy and Freedom (1967) p. 7; Gross, The Concept of Privacy (1967) 42 N.Y.U.L.Rev. 34, 35--36.) ² Try as they might, Warren and Brandeis had a difficult time tracing a right of privacy to the common law. In many respects a person had less privacy in the small community of the 18th century than he did in the urbanizing late 19th century or he does today in the modern metropolis. Extended family networks, primary group relationships, and rigid communal mores served to expose an individual's every deviation from the norm and to straitjacket him in a vise of backyard gossip. Yet Warren and Brandeis perceived that it was mass exposure to public gaze, as opposed to backyard gossip, which threatened to deprive men of the right of 'scratching wherever one itches.' (Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's (1966) 66 Colum.L.Rev. 1003, 1025.)

Acceptance of the right to privacy has grown with the increasing capability of the mass media and electronic devices with their capacity to destroy an individual's anonymity, intrude upon his most intimate activities, and expose his most personal characteristics to public gaze.

In a society in which multiple, often conflicting role performances are demanded of each individual, the original etymological meaning of the word 'person'--mask-- ³ has taken on new meaning. Men fear exposure not only to those closest to them; much of the outrage underlying the asserted right to privacy is a reaction to exposure to persons known only through business or other secondary relationships. The claim is not so much one of total secrecy as it is of the right to Define one's circle of intimacy--to choose who shall see beneath the quotidian mask. Loss of control over which 'face' one puts on may result in literal loss of self-identity (Westin, Supra, at p. 1023; cf. Fried, Privacy (1968) 77 Yale L.J. 475), and is humiliating beneath the gaze of those whose curiosity treats a human being as an object.

A common law right to privacy, based on Warren and Brandeis' article, is now recognized in at least 36 states. (Prosser, Law of Torts (3d ed. 1964) at pp. 831--832; Commonwealth v. Wiseman (1969) 356 Mass. 251, 249 N.E.2d 610, cert. denied (1970) 398 U.S. 960, 90 S.Ct. 2165, 2 L.Ed.2d 546; Hamberger v. Eastman (1964) 106 N.H. 107, 206 A.2d 239; Rugg v. McCarty (Colo.1970) 476 P.2d 753; Fergerstrom v. Hawaiian Ocean View Estates (Hawaii 1968) 441 P.2d 141; Apodaca v. Miller (1968) 79 N.M. 160, 441 P.2d 200.) California has recognized the right to privacy for 40 years. (Melvin v. Reid (1931) 112 Cal.App. 285, 297 P. 91.)

The right to keep information private was bound to clash with the right to disseminate information to the public. We early noted the potential conflict between freedom of the press and the right of privacy (Gill v. Curtis Publishing Co., 38 Cal.2d 273, 277--278, 239 P.2d 630; Gill v. Hearst Publishing Co., 40 Cal.2d 224, 228, 253 P.2d 441), as did Warren and Brandeis themselves, who suggested that the right should not apply to matters of 'public or general interest.' (Warren and Brandeis, Supra, 4 Harv.L.Rev. 193, 214.) ⁴ The instant case, pitting a rehabilitated felon's right to anonymity against a magazine's right to identify him, compels us to consider the character of these competing interests.

The central purpose of the First Amendment 'is to give to every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society must deal. * * *' ⁵ (A. Meiklejohn, Political Freedom: The Constitutional Powers of the People (1960) p. 75.) Nor is freedom of the press confined to comment upon public affairs and those persons who have voluntarily sought the public spotlight. 'Freedom of discussion * * * must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period. * * *' (Thornhill v. Alabama (1940) 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093; see Time, Inc. v. Hill (1967) 385 U.S. 374, 388, 87 S.Ct. 534, 17 L.Ed.2d 456.) The scope of the privilege thus extends to almost all reporting of recent events, even though it involves the publication of a purely private individual's name or likeness. (See, e.g., Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491; Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876.) ⁶

Particularly deserving of First Amendment protection are reports of 'hot news,' items of possible immediate public concern or interest. The need for constitutional protection is much greater under these circumstances, where deadlines must be met and quick decisions made, than in cases where more considered editorial judgments are possible. (Rosenbloom v. Metromedia, Inc. (3d Cir. 1969) 415 F.2d 892, 895--896.) ⁷ Most factual reporting concerns current events. For example, in Time, Inc. v. Hill, Supra, 385 U.S. 374, 383--384, fn. 7, 87 S.Ct. 534, 17 L.Ed.2d 456, the court cited 22 cases in which the right of privacy gave way to the right of the press to publish matters of public interest. Seventeen of these 22 cases (77.3 percent) involved events which had occurred quite recently. ⁸

There can be no doubt that reports of current criminal activities are the legitimate province of a free press. The circumstances under which crimes occur, the techniques used by those outside the law, the tragedy that may befall the victims--these are vital bits of information for people coping with the exigencies of modern life. Reports of these events may also promote the values served by the constitutional guarantee of a public trial. Although a case is not to be 'tried in the papers,' reports regarding a crime or criminal proceedings may encourage unknown witnesses to come forward with useful testimony and friends or relatives to come to the aid of the victim. ⁹

It is also generally in the social interest to identify adults currently charged with the commission of a crime. While such an identification may not presume guilt, it may legitimately put others on notice that the named individual is suspected of having committed a crime. Naming the suspect may also persuade eye witnesses and character witnesses to testify. For these reasons, while the suspect or offender obviously does not consent to public exposure, his right to privacy must give way to the overriding social interest.

In general, therefore, truthful reports of Recent crimes and the names of suspects or offenders will be deemed protected by the First Amendment. ¹⁰

The instant case, however, compels us to consider whether reports of the facts of Past crimes and the...