Barbieri v. News-Journal Co., NEWS-JOURNAL

• Decision Date: 13 March 1963
• Docket Number: NEWS-JOURNAL
• Parties: , 56 Del. 67 John P. BARBIERI, Appellant, v.COMPANY, a corporation of the State of Delaware, Appellee.
• Court: United States State Supreme Court of Delaware

Page 773

189 A.2d 773

6 Storey 67, 56 Del. 67

John P. BARBIERI, Appellant, v. NEWS-JOURNAL COMPANY, a corporation of the State of Delaware, Appellee.

Supreme Court of Delaware.

March 13, 1963.

Hiram W. Warder, Wilmington, for appellant.

Louis J. Finger, of Richards, Layton & Finger, Wilmington, for appellee.

SOUTHERLAND, C. J., and WOLCOTT and TERRY, JJ., sitting.

SOUTHERLAND, Chief Justice.

The tort complained of here--violation of the right of privacy--has never been expressly recognized as a part of our law. Reardon v. News-Journal Co., Del., 164 A.2d 263, assumed, without deciding, that it is an actionable wrong. The facts of the instant case are as follows:

On March 27, 1961, the 'Wilmington Morning News' reported in its news column a statement of a member of the State Senate respecting a bill he hoped to introduce which would make mandatory for certain crimes the punishment of whipping. The article concluded:

'The last person to feel the lash under Delaware's whipping post was John Barbieri, 30, who was convicted of breaking and entering. He received twenty lashes at the New Castle Correctional Institution in June, 1952.'

The 'Evening Journal' of April 8, 1961, carried another news article about the suggestion that the punishment of whipping be made mandatory in certain cases. Toward the end of the article it referred to John Barbieri as holding 'the dubious distinction of having been the last man to feel the bite of the lash', and stated that he had received 20 lashes in June, 1952.

The 'Morning News' of December 5, 1961, reported the case of a defendant who was sentenced by the Superior Court to five years and 20 lashes. The sentence was suspended and the defendant placed on probation. The article referred by name to a previous offender who in 1950 had been sentenced to whipping in Kent County. It also referred to the whipping of John P. Barbieri in 1952 'for beating a woman in her home.'

The 'Evening Journal' of the same date carried practically the same story as the 'News', including the reference to the two prior cases.

It is plaintiff's contention that the public reporting of the fact that nine years before he had suffered the humiliating punishment of whipping is a violation of his right of privacy and is actionable.

The existence of this tort, though of recent origin, is now well recognized. It stems from the 'right to be let alone' referred to by Judge Cooley (Cooley on Torts, 2d Ed., 1889, p. 29) and developed at some length in the well-known article by Warren and Brandeis. 4 Harv.L.Rev. (Dec. 15, 1890), 193. The Restatement of the Law of Torts, § 867, treats the right as an established one. See also Prosser On Torts, 2d Ed., Ch. 20, p. 635 ff. We referred to the rule, without deciding whether it was the law in Delaware, in Reardon v. News-Journal Co., Del., 164 A.2d 263, 266. Cf. Ettore v. Philco Television Broadcasting Corporation, 3 Cir., 229 F.2d 481, 58 A.L.R.2d 626. We see no reason for not recognizing it as a part of our law.

It is not surprising that the application of a rule of law of such recent development presents difficulties. Its scope and its limitations are still somewhat uncertain. Prosser says:

'It appears in reality to be a complex of four distinct wrongs, which have little in common except that each is an interference with the plaintiff's right 'to be let alone." p. 637.

Prosser lists the following examples:

1. Intrusion on the plaintiff's physical solitude.

2. Publication of private matters violating the ordinary decencies.

3. Putting plaintiff in a false position in the public eye, as by signing his name to a letter attributing to him views that he does not hold.

4. Appropriation of some element of plaintiff's personality for commercial use.

The delineation of the limitations of the rule presents serious difficulties. The press has the right, guaranteed by the federal and state constitutions, to publish news and all matters of legitimate public concern. One who seeks the public eye cannot complain of publicity if the publication does not violate ordinary notions of decency. The same rule applies to persons accused or convicted of crime. The Restatement says:

'One who unwillingly comes into the public eye because of his own fault, as in the case of a criminal, is subject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one unjustly charged with crime or the subject of a striking catastrophe. Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention; until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiousity of the public as to their leaders, heroes, villains and victims.' § 867, p. 400.

The concluding sentence of the above quotation is the basis of plaintiff's case here. He concedes, as he must, that the publication in 1952 of the circumstances of his crime and punishment was no violation of his right of privacy. But he says (and his complaint so avers) that he has reformed; he has since led, and is now leading, a blameless life as a good workman and a good family man. Hence his case is that he has reacquired his right of privacy, and to publish his name in connection with an episode nine years old is an actionable wrong.

But we do not agree that the lapse of time, in itself, recreates, or reinstates, a plaintiff's prior right of privacy, because the right of the press to republish the unpleasant facts still exists if those facts are 'newsworthy', i. e., if they still are of legitimate public concern. Prosser, op. cit., p. 644.

Some of the decided cases involving republication of matters once of public interest seem to recognize such a distinction, although it is perhaps not always clearly made.

In Smith v. Doss, 251 Ala. 250, 37 So.2d 118, the republication of a deceased father's disappearance of 25 years before, and the erroneous suspicion of another person of his supposed murder, were held no invasion of the plaintiffs' right of privacy, for the story was a matter of public record and a part of the life of the community.

In Estill v. Hearst Publishing Company, 7 Cir., 186 F.2d 1017, defendant republished 15 years later a photograph of plaintiff 'in a friendly pose' with the 'noted outlaw' Dillinger. The republication was part of a series of articles on Dillinger's career, and the series was inspired by the recent death of a 'Dillinger gang 'moll". Plaintiff at the time was a public official. The court held the republication no invasion of the right of privacy, because the matter published was not private but public. The court did not discuss the distinction we have sought to make, but it is clear that the series of articles on the career of a notorious criminal was a matter of legitimate public interest. The steady popularity of the summaries and records of criminal trials is evidence of that interest. One who is unfortunate enough to become connected with a criminal trial, especially as the criminal, has ordinarily no right of privacy in respect of his connection with the event that will prevail over the rights of the press to print and the public to know the facts. Of course, if it is clear that all legitimate public interest in the subject has long since ceased, or if the matter published is offensive to common decency, a different situation is presented.

In Sidis v. F-R Publishing Company, 113 F.2d 806, 138 A.L.R. 15, the Second Circuit Court of Appeals applied the test we have above...