Cain v. Hearst Corp.

• Decision Date: 22 June 1994
• Docket Number: No. D-4171,D-4171
• Citation: 878 S.W.2d 577
• Parties: 22 Media L. Rep. 2161 Clyde Ura CAIN, Sr., Appellant, v. HEARST CORPORATION d/b/a the Houston Chronicle Publishing Company, Appellee.
• Court: Texas Supreme Court

Page 577

878 S.W.2d 577

22 Media L. Rep. 2161

Clyde Ura CAIN, Sr., Appellant, v. HEARST CORPORATION d/b/a the Houston Chronicle Publishing

Company, Appellee.

No. D-4171.

Supreme Court of Texas.

Argued May 11, 1994.

Decided June 22, 1994.

Clyde Ura Cain, Sr., pro se.

Joseph G. Chumlea, Dallas, amicus curiae.

William W. Ogden and Stacy W. Beasley, Houston, for appellee.

Justice GONZALEZ delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice CORNYN and Justice ENOCH join.

This case comes to us on certified questions from the United States Court of Appeals for the Fifth Circuit. We are asked to decide two issues: 1) whether Texas recognizes the tort of false light invasion of privacy, and 2) if Texas recognizes this tort, which statute of limitations governs that action. ¹ Because false light substantially duplicates the tort of defamation while lacking many of its procedural limitations, we answer the first question in the negative, thereby dispensing with the need to answer the second question.

Clyde Cain is a prison inmate in the Texas Department of Corrections serving a life sentence for murder. He sued the Hearst Corporation, d/b/a the Houston Chronicle Publishing Company, claiming that a newspaper article invaded his privacy by placing him in a false light. The article, which appeared in the Chronicle on June 30, 1991, referred to Cain as a burglar, thief, pimp, and killer. In recounting Cain's criminal record the article, in summary, states that:

Cain is believed to have killed as many as eight people; Cain killed one of his lawyers in 1973 and married the lawyer's widow a few months later; Cain killed a 67 year old man in 1977; in 1983 he "bought" a prostitute from a friend to help finance his activities; Cain persuaded the prostitute to marry a trailer park owner named Anderson, so that Cain could kill Anderson and share the prostitute's inheritance from Anderson; when the prostitute balked, Cain threatened to kill her 5 year old daughter and "deliver her daughter's head in a wastepaper basket"; the prostitute married Anderson 3 days later, and on January 5, 1985 Cain killed Anderson.

Cain's sole complaint is that the article printed false information that he was a member of the "Dixie Mafia" and that he had killed as many as eight people. Cain asserted that these statements put him in a false light with the public. Suit was filed in state court one and one-half years after the article was published.

Hearst removed the case to the United States District Court for the Southern District of Texas. The court granted Hearst's motion for dismissal on the grounds that Cain's action lies in libel, and held that the one-year limitations period expired before Cain brought the suit. Determining that the above questions are unsettled under Texas precedent, the Fifth Circuit certified these questions to us. Cain v. Hearst Corp., 1 F.3d 345 (5th Cir.1993), certified question accepted, 37 Tex.Sup.Ct.J. 513 (Feb. 9, 1994).

Genesis of Invasion of Privacy

Professor William L. Prosser cataloged four distinct injuries under the tort of invasion of privacy--(1) intrusion upon a person's right to be left alone in his or her own affairs, (2) publicity given to private information about a person, (3) appropriation of some element of the person's personality for commercial use, and (4) false light. WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 638 (2d ed. 1955). These four variations of the tort were adopted by the Second Restatement of Torts. See RESTATEMENT (SECOND) OF TORTS § 652A (1977).

Texas did not recognize any of the four types of invasion of privacy until our decision in Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), which involved the first category of invasion of privacy as developed by Prosser and recognized by the Restatement: an intrusion into the plaintiff's seclusion. In Billings, the defendant, a telephone company employee, had placed a wire tap on the plaintiff's residential telephone line and had apparently listened to plaintiff's personal telephone conversations. In affording the plaintiff relief, we noted that the majority of jurisdictions in the United States recognize an independent cause of action for the invasion of privacy, and held that "the right of privacy constitutes a legal injury for which a remedy will be granted." Id. at 860. We have also expressly recognized the second type of privacy right, the right to "freedom from public disclosure of embarrassing private facts." Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). ² Although we acknowledged the Prosser categorization in Industrial Foundation, we have never embraced nor recognized the fourth and final type of invasion of privacy, the "false light" tort. We decline to do so today.

The RESTATEMENT (SECOND) OF TORTS, Section 652E defines false light invasion of privacy as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

RESTATEMENT (SECOND) OF TORTS § 652E (1977). The tort has been recognized by several Texas courts of appeals. See Reeves v. Western Co. of N. Am., 867 S.W.2d 385, 396-97 (Tex.App.--San Antonio 1993, no writ); Mitre v. La Plaza Mall, 857 S.W.2d 752, 755 (Tex.App.--Corpus Christi 1993, writ denied); Mitre v. Brooks Fashion Stores, Inc., 840 S.W.2d 612, 622 (Tex.App.--Corpus Christi 1992, writ denied); Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 6 (Tex.App.--Corpus Christi 1991, no writ); Wavell v. Caller-Times Publishing Co., 809 S.W.2d 633, 634 (Tex.App.--Corpus Christi 1991, writ denied); Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 809 S.W.2d 514, 517 (Tex.App.--San Antonio 1991), rev'd, 844 S.W.2d 198, 200 (Tex.1992); Boyles v. Kerr, 806 S.W.2d 255, 258-59 (Tex.App.--Texarkana 1991) rev'd 855 S.W.2d 593 (Tex.1993); Clarke v. Denton Publishing Co., 793 S.W.2d 329, 330 (Tex.App.--Fort Worth 1990, writ denied); Covington v. Houston Post, 743 S.W.2d 345, 346-47 (Tex.App.--Houston [14th Dist.] 1987, no writ); Floyd v. Park Cities People, Inc., 685 S.W.2d 96, 97-98 (Tex.App.--Dallas 1985, no writ); National Bonding Agency v. Demeson, 648 S.W.2d 748, 749-50 (Tex.App.--Dallas 1983, no writ); Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App --Fort Worth 1982, no writ); Moore v. Charles B. Pierce Film Enterprises, 589 S.W.2d 489, 490-91 (Tex.Civ.App.--Texarkana 1979, writ ref'd n.r.e.) In all of these cases, either no application for writ of error was filed in this Court, or the Court rejected the application with the notation "writ denied," or the posture of the case was such that it was not necessary to reach the issue, so that our approval was never given to any of these holdings. Also, several federal courts interpreting Texas law have permitted a cause of action for false light. See Moore v. Big Picture Co., 828 F.2d 270, 273-74 (5th Cir.1987); Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1091 (5th Cir.1984), cert. denied, 469 U.S. 1107, 105 S.Ct. 783, 83 L.Ed.2d 777 (1985); Braun v. Flynt, 726 F.2d 245, 252 (5th Cir.), cert. denied, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d 189 (1984). Nevertheless, false light remains the least-recognized and most controversial aspect of invasion of privacy. See BRUCE W. SANFORD, LIBEL AND PRIVACY § 11.4.1 at 567 (2d ed. 1991) ("Of Dean Prosser's four types of privacy torts, the 'false light' school has generated the most criticism because of its elusive, amorphous nature."); Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light that Failed, 64 N.Y.U.L.REV. 364, 452 (1989) ("the wiser course may be for states to eliminate false light altogether").

Today, we join those jurisdictions that do not recognize the false light invasion of privacy action. Renwick v. News & Observer Publishing Co., 310 N.C. 312, 312 S.E.2d 405, 410, cert. denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984) ("We will not expand the tort of invasion of privacy recognized in this jurisdiction to include 'false light' invasions of privacy."); see Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 480-81 (Mo.1986) (refusing to recognize the tort of false light based on a fact pattern that presents nothing more than a defamation claim); Arrington v. New York Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 945, 434 N.E.2d 1319, 1323 (1982), cert. denied, 459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994 (1983) (noting "serious concern" that recognition of false light would sidestep safeguards for libel cases); Yeager v. Local 20, Int'l Bhd. of Teamsters, 6 Ohio St.3d 369, 371-74, 453 N.E.2d 666, 669-70 (1983) ("Under the facts of the instant case, we find no rationale which compels us to adopt the 'false light' theory or recovery in Ohio at this time."); Falwell v. Penthouse Int'l, Ltd., 521 F.Supp. 1204, 1206 (W.D.Va.1981) ("[t]he courts of Virginia simply do not recognize such a common law cause of action"); Mitchell v. Random House, Inc., 865 F.2d 664, 672 (5th Cir.1989) ("[we] accordingly decline to adopt for Mississippi Mitchell's false light theory") ³; Elm Medical Lab., Inc. v. RKO Gen., Inc., 403 Mass. 779, 532 N.E.2d 675, 681 (1989) ("The only invasion of privacy the plaintiffs assert is 'putting plaintiff[s] in a false light'. This court has not recognized that tort and does not choose to do so now."); Hoppe v. Hearst Corp., 53 Wash.App. 668, 770 P.2d 203, 208 n. 5 (Wash.Ct.App.1989) ("We note that the trial court could have properly dismissed Hoppe's false light claim on the basis that thus far, Washington has not recognized the tort."); Zinda...