Anonsen v. Donahue

• Decision Date: 03 June 1993
• Docket Number: KTRK-TV,No. 01-91-00377-CV,01-91-00377-CV
• Citation: 857 S.W.2d 700
• Parties: Nancy ANONSEN and Michael Anonsen, Individually and as next friends of William Booher, Jr., Appellants, v. Phil DONAHUE, Multimedia Entertainment, Inc., Multimedia, Inc., Jose Pretlo, KTRK, Inc. d/b/a, and Miriam Booher, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 700

857 S.W.2d 700

Nancy ANONSEN and Michael Anonsen, Individually and as next

friends of William Booher, Jr., Appellants, v. Phil DONAHUE, Multimedia Entertainment, Inc., Multimedia,

Inc., Jose Pretlo, KTRK, Inc. d/b/a KTRK-TV, and

Miriam Booher, Appellees.

No. 01-91-00377-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 3, 1993.

Rehearing Denied July 8, 1993.

David H. Berg, Houston, for appellants.

James R. George, Julie A. Ford, Austin, James B. Galbraith, Kenneth J. Bower, Galveston, Otto D. Hewitt, III, Alvin, for appellees.

Before OLIVER-PARROTT, C.J., and COHEN and O'CONNOR, JJ.

OPINION

OLIVER-PARROTT, Chief Justice.

The question before the Court is whether a person's right to make public the most private details of their own life is limited when the information also reveals painful intimacies of other persons. We find that it is not.

On January 5, 1989, appellee, Miriam (Mickey) Booher appeared as a guest on the Phil Donahue Show, the subject matter of which was pregnancies resulting from incest or rape. Booher told a nationwide audience the story of her husband's rape of her daughter from a previous marriage when the child was 11 years old. Booher also revealed that she had never reported the rape to authorities; that she had remained married to her husband for some 16 to 17 years after the incident; and that her 16-year-old adopted son, who had been raised as her daughter's adopted half-brother, was actually her daughter's biological child. Although the names of Booher's husband, daughter, and grandson were not disclosed on the air, Booher used her own full name. From time to time the caption "Daughter Had Husband's Baby" appeared on the screen as Booher spoke.

As a result of the broadcast, appellants brought this suit against Booher and the other appellees, alleging invasion of privacy through the public disclosure of private facts and intentional and negligent infliction of emotional distress. Their complaint is that by disclosing her own identity, Booher effectively disclosed their identities as well, thus exposing the incestuous rape of Anonsen and the circumstances of her child's birth to a nationwide audience. The trial court granted summary judgment in favor of all defendants. Finding that Booher's right to publish her personal account of her family's tragedy is protected speech under the first amendment of the United States Constitution, we affirm.

Booher told the Donahue show audience that she had met her husband in Germany and moved to Arkansas with him and her six-year-old daughter, Nancy, whom he adopted. Sometime in 1972, Booher's husband raped Nancy, who was then 11 years old. Nancy became pregnant as a result and gave birth to a boy. Booher claimed that she did not know at the time that her husband was the child's father. Her husband insisted that they should give their daughter love and understanding and that they should adopt the child and raise it as their own. Booher assented. It was not until five years later that Booher learned the real story of her daughter's pregnancy when, in anger, her husband revealed the truth.

Booher claimed that upon learning the truth, she ordered her husband to leave but reconciled with him shortly thereafter because of economic hardship. Booher told the viewers that she could neither read or write English, could obtain only menial jobs, and she feared for her welfare and the welfare of her children. In addition, at that time, Booher's daughter did not know that Booher had learned the truth about the rape, and her grandson/adopted son "loved his daddy." Maintaining physical separation in the same house, Booher and her husband continued to live together until her adopted son was 15 years old. At that time, the boy learned the truth about his parents, and, according to Booher, there was no longer a need for pretense. She and her husband, who was at all relevant times a police officer, separated formally and were divorced sometime thereafter.

Appellants acknowledge that the story told by Booher is true. In addition, they assert the following facts that led up to Booher's appearance on the Donahue show. After Booher's husband left her and filed for divorce in 1988, she wrote a letter about the rape and sent it to four nationally broadcast talk shows. Booher was motivated by revenge and the desire to sell a book about her life. Only Donahue's producer responded to the letter. No member of Donahue's staff ever contacted Anonsen or her son to verify Booher's story or to determine whether they consented to the broadcast.

In fact, Anonsen testified that she told her mother not to go on the Donahue show because "too many people will get hurt." Booher told Anonsen that she had cancelled her plans to appear. Anonsen learned of her mother's appearance from her husband. Plaintiff, Michael Anonsen saw the show when it was broadcast on KTRK-TV. William, Jr., who was 16 years old at the time, testified that he watched the show with his father. After the show, his high school classmates harassed him, calling him a "bastard." He had to transfer to another school to escape the harassment.

Until the Donahue broadcast, the story of Anonsen's rape and the truth about William, Jr.'s real parents had never been reported to the authorities, or made a part of any public record. Appellants maintain that the story had been revealed only to a few close friends and relatives.

For purposes of this opinion we will accept all appellant's factual assertions as true and look at the summary judgment proof in a light most favorable to them. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Without specifically so holding, the United States Supreme Court has indicated that the tort of invasion of privacy may encompass a cause of action for public disclosure of private facts, even if the facts are true. See Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 487-91, 95 S.Ct. 1029, 1042-44, 43 L.Ed.2d 328 (1975); Time, Inc. v. Hill, 385 U.S. 374, 383 n. 7, 87 S.Ct. 534, 539-40 n. 7, 17 L.Ed.2d 456 (1967); see also, Virgil v. Time, Inc., 527 F.2d 1122, 1127 (9th Cir.1975). The purpose of the tort is to protect the individual against unwarranted publication of private facts. However, the protection of the individual must be balanced with the privilege of the press to give publicity to matters of public interest that arise out of the desire and the right of the public to know what is going on in the world and the freedom of the press and other information agencies to report it. See Time, Inc., 385 U.S. at 388, 87 S.Ct. at 542; see also generally, Prosser and Keaton on Torts, (5th ed.1984); RESTATEMENT (SECOND) OF TORTS § 652 D &amp cmt. § 652 D (1989). While there generally can be no liability for publication of truthful information contained in official records open to public inspection, Floyd v. Park Cities People, Inc., 685 S.W.2d 96, 97-98 (Tex.App.--Dallas 1985, no writ), a different standard may apply in cases where the facts revealed are not a matter of any public record. See Cox Broadcasting Corp., 420 U.S. at 491, 95 S.Ct. at 1044.

To prevail in a common-law tort cause of action for invasion of privacy, a plaintiff must establish the following elements:

(1) publicity was given to matters concerning the plaintiff's private life;

(2) the matters made public would be highly offensive to a reasonable person of ordinary sensibilities;

(3) the matters publicized were not of legitimate public concern.

Indus. Found. v. Texas Indus. Acc. Bd., 540 S.W.2d 668, 682 (Tex.1976); see also Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973).

The defendants, Booher, along with Multimedia Entertainment, Inc. and Multimedia, Inc., who produce the Donahue show; the show's host, Phil Donahue; Jose Pretlo, the producer of the show involving Booher; and KTRK, Inc., d/b/a KTRK TV, the television channel that broadcast the show in the Houston-Galveston area (collectively, the "media defendants"), moved for summary judgment on the following grounds:

(1) The published facts concerning incest, sexual abuse, and acceptance and understanding of the victims of these crimes, were of legitimate concern to the public.

(2) No private facts were published to the public at large.

(3) Booher's personal revelations were protected under the first and fourteenth Amendments of the United States Constitution.

In addition to the grounds asserted by the other defendants, KTRK moved for summary judgment on the grounds that (1) it had no duty to prescreen the show because it was justified in relying on Metromedia's warranty that the show did not violate such rights, and (2) the nationwide broadcast of the show, three days before it was aired in the Houston-Galveston area, precluded an action against KTRK for public disclosure of private facts.

To obtain summary judgment, a defendant has the burden of establishing by competent summary judgment proof that, as a matter of law, there is no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). While the defendants' motion for summary judgment and the plaintiffs' response addressed all three elements of the privacy tort, as well as the plaintiffs' other causes of action, we find the analysis of the third element to be dispositive of the appeal.

It is the third element of the tort, i.e., the publicizing of matters not of legitimate public concern, that gives rise to a first amendment privilege, sometimes referred to as the "newsworthiness defense," to publish or broadcast news or other matters of public interest. Ross v. Midwest Communications, Inc., 870 F.2d 271, 272 (5th Cir.1989); Dresbach v. Doubleday & Co., Inc., 518 F.Supp. 1285, 1287 (D.D.C.1981). The privilege to discuss matters of public interest extends to information concerning interesting phases of human activity and must embrace all issues about which...