Denver Pub. Co. v. Bueno, No. 01SC386.

Citation54 P.3d 893
Decision Date16 September 2002
Docket NumberNo. 01SC386.
PartiesThe DENVER PUBLISHING COMPANY d/b/a Rocky Mountain News, Petitioner, v. Manuel Edward ("Eddie") BUENO, Respondent.
CourtSupreme Court of Colorado

Rehearing Denied October 7, 2002.1

Baker & Hostetler, LLP, Marc D. Flink, Denver, Colorado, Baker & Hostetler, LLP, Bruce W. Sanford, Bruce D. Brown, Washington, D.C., Attorneys for Petitioner.

Roger T. Castle, P.C., Roger T. Castle, Denver, Colorado, Attorneys for Respondent.

Faegre & Benson, LLP, Thomas B. Kelley, Steven D. Zansberg, Christopher P. Beall, Denver, Colorado, Amici Curiae for the Colorado Press Association; Colorado Broadcasters Association; Society of Professional Journalists and Newspaper Association of America.

Justice KOURLIS delivered the Opinion of the Court.

With this case we address whether Colorado permits a plaintiff to sue for the tort of false light invasion of privacy: a cause of action arising out of publicity that unreasonably places another person in a false light before the public. In Bueno v. Denver Publishing Co., 32 P.3d 491 (Colo.App.2000), the court of appeals answered that question affirmatively, ruling that plaintiff Eddie Bueno's (Bueno) false light claim against the Denver Publishing Company was properly submitted to the jury. To the contrary, we now decline to recognize the tort, concluding that it is highly duplicative of defamation both in interests protected and conduct averted. Further, we find the subjective component of the false light tort raises the spectre of a chilling effect on First Amendment freedoms. We therefore reverse the court of appeals and join those jurisdictions that do not recognize false light as a viable invasion of privacy tort. We remand this case to the court of appeals for consideration of Eddie Bueno's cross-appeal of the trial court's dismissal of his defamation claim.

I. Facts

The Denver Publishing Company, d/b/a/ Rocky Mountain News (the News), published a four-page, thirteen-column article with the bold headline: "Denver's Biggest Crime Family." Ann Carnahan, Denver's Biggest Crime Family, Rocky Mountain News, Aug. 28, 1994, at 20A. Bueno sued the News and Ann Carnahan, contending the story defamed him and invaded his privacy.2 In essence, he argued that the article painted him in a false light as having criminal propensities, like many of his siblings.

The story's first page depicted a "family tree," the center of which contained a photo of Della and Pete Bueno on their wedding day in 1937. Mug-shot style photos of their eighteen children encircled the parents' photo; captions summarized each of the Bueno siblings' misdeeds, misfortunes, and, where applicable, criminal records. The caption under Bueno's photo read, "EDDIE, 55 Oldest of the Bueno children." In the first edition of the paper to be published, the caption under Bueno's youngest brother's photo read, "FREDDIE, 28 Only Bueno brother who stayed out of trouble. Living in the Midwest." Defendants changed this caption in a later edition to read, "Freddie, 28 Youngest Bueno child. Living in the Midwest." The revised version omitted the language, "Only brother to stay out of trouble." The article's first-page subtitle declared, "15 of Pete and Della Bueno's 18 children have arrest records, making the clan Denver's biggest crime family." Some twenty-five other statements interspersed throughout the article form the basis of Bueno's claims, among them:

Older siblings lure younger into life of crime [a headline on the article's third page].
The older Bueno brothers are in their 40s and 50s now. They're out of prison, but most of their younger brothers will be in for a long, long time.
Joey can't help but look at his older brothers who robbed. They're out of prison now.
The younger brothers recall waking up many nights at 2 or 3 a.m. when their older brothers stumbled home drunk.
Whenever the boys ended up in jail, Della Bueno bailed them out.
"It seems like all the Buenos are destined to be nothing but criminals," David said. [David is a Bueno sibling.]

Eddie Bueno, now fifty-five, left his home when he was thirteen years old and has had virtually no contact with other family members since then. He married his present wife at age twenty-one, and they have three children, all married with families of their own. Eddie Bueno served six years in the United States Army, departing with an Honorable Discharge. His current employment began twenty-five years ago with the City and County of Denver's vehicle maintenance department. He has worked his way up to the position he now holds, center supervisor. He had no involvement whatsoever in his siblings' criminal activities, nor did he seek publicity in his life generally. Quite the contrary, Eddie Bueno purposefully kept secret from most of his friends and family the fact that he was related to the other, more notorious, Bueno children.

The reporter for the News worked on the story for six months. She interviewed numerous law enforcement officials and reviewed court and police department records. She attempted to contact all surviving children, ultimately interviewing seven of them. Three times she attempted to contact Eddie Bueno, but he did not return her calls.

Carnahan and the News insist that the article makes no false statements about Bueno. First, they argue that he did not "stay out of trouble." For this, they point to an "arrest card" in their possession that appears to indicate Bueno had a run-in with police when he was a teenager. No charges, convictions, or other ramifications resulted from that incident and Bueno disputes the card's authenticity. At trial, the judge ruled the arrest card inadmissible for any purpose, and the court of appeals affirmed.3

The News further points out a portion of the article it contends rectifies any possible misunderstanding vis-à-vis Eddie Bueno:

Freddie, the youngest, and Eddie, the oldest, are the only two Bueno boys who have stayed out of trouble.
Freddie attributes his clean record to his close relationship with his mother. Of all the boys, Eddie had the closest relationship to their father.

These sentences appear on the last page of the article, seven paragraphs from the end.

II. Procedural History

Bueno sued the News, asserting four causes of action, plus compensatory and punitive damages. He alleged: 1. invasion of privacy by placing him in a false light; 2. invasion of privacy by public disclosure of private facts (namely, disclosure of his photograph and identification of him as the oldest child of "Denver's biggest crime family"); 3. defamation by libel per se (false statements and characterization that Bueno had himself engaged in criminal activity); and 4. negligence (by identifying him as a member of a crime family and identifying him as someone who had engaged in crime). Before trial, the trial court granted summary judgment in favor of the News on the claims of negligence and invasion of privacy: giving publicity to private facts. On the latter claim, the court determined that the portions of the article referring to Bueno that were "true," such as Bueno's photo, its caption, and discussion of his dysfunctional, crime-ridden family, were not "embarrassing private facts"; rather, they were matters of "legitimate public concern." The propriety of those rulings is not before us.

At the close of evidence, the trial judge directed a verdict against Bueno on his defamation claims. As to the libel per quod claim, the court concluded that such a claim would require proof of special damages, or monetary losses resulting from the publication, not including injuries to reputation or feelings. The court found that Bueno had not submitted such proof, and thus dismissed the claim. As to the libel per se claim, the court concluded that such a claim would require proof that the publication was directed at Bueno. The court found that the publication was not "specifically directed at" the plaintiff and thus granted the motion for directed verdict on both claims. These rulings have not been reviewed on appeal. The court of appeals did not reach them, because it upheld the verdict on false light; and accordingly the propriety of the rulings is not before us.4

Bueno's remaining claim was for invasion of privacy by placing him before the public in a false light. That claim proceeded to the jury. The jury found for Bueno and awarded him $47,973.90 for noneconomic losses, $5,280 for economic losses, and $53,253.90 in exemplary damages. Defendants appealed5 and Bueno conditionally cross-appealed.

We granted certiorari on the broad question of whether Colorado should recognize the tort of false light, and the narrower question of what the elements of such a tort should be if recognized.6

III. Background

Samuel D. Warren and Louis D. Brandeis first recognized Invasion of Privacy as a tort in their seminal article, The Right to Privacy, 4 Harv. L.Rev. 193 (1890). While Warren and Brandeis first presented the right of privacy as a legal theory, it was Dean William L. Prosser who exerted primary influence over its current formulation. In a law review article published in 1960, Prosser explained,

[Invasion of privacy] is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff,. . . "to be let alone."

William L. Prosser, Privacy, 48 Cal. L.Rev. 383, 389 (1960) (citation omitted). By 1977, the drafters of the Restatement adopted Prosser's four categories:

1) unreasonable intrusion upon the seclusion of another ("intrusion");
2) publicity that unreasonably places another in a false light before the public ("false light");
3) unreasonable publicity given to another's private life ("disclosure"); and
4) appropriation of another's name or likeness ("a

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