Godbehere v. Phoenix Newspapers, Inc., CV-87-0379-PR

• Decision Date: 26 October 1989
• Docket Number: No. CV-87-0379-PR,CV-87-0379-PR
• Citation: 162 Ariz. 335,783 P.2d 781
• Parties: , 58 USLW 2296, 17 Media L. Rep. 1925 Richard G. GODBEHERE; David Carter; Robert W. Malone; Jerome Ellison; Salvatore A. Dicciccio; Jerry White; David Hendershott; Steve Werner; Richard Rosky; Patricia Mann; Brian Carnahan; Thomas Shorts; Roy Reyer; Gary Godbehere; Ray Jones; Larry Wendt; Gary Freund; Cliff Anderson; James F. Porter; Paul B. Thornton; Phillip A. Babb; Ralph Pendergast; Kirby D. Moore; Kirk L. Meisner; Clark W. Chapman; Patrick C. Cooper; Robert D. Roepke; Michael R. Mitchell; Samuel M. Grimes; Dennis G. Dowell; Mark Battilana; and David Toporek, Plaintiffs/Appellants, v. PHOENIX NEWSPAPERS, INC.; Randy Collier; Darrow Tully; Richard Robertson; Tom Fitzpatrick; Pat Flannery; Tony Natale; Pat Murphy; Susan Leonard; Phil Sunkel; Alan Moyer; Lynne Holt; Jay Brashear; John Kolbe; and Victor Dricks, Defendants/Appellees.
• Court: Arizona Supreme Court

Page 781

783 P.2d 781

162 Ariz. 335, 58 USLW 2296, 17 Media L. Rep. 1925

Richard G. GODBEHERE; David Carter; Robert W. Malone; Jerome Ellison; Salvatore A. Dicciccio; Jerry White; David Hendershott; Steve Werner; Richard Rosky; Patricia Mann; Brian Carnahan; Thomas Shorts; Roy Reyer; Gary Godbehere; Ray Jones; Larry Wendt; Gary Freund; Cliff Anderson; James F. Porter; Paul B. Thornton; Phillip A. Babb; Ralph Pendergast; Kirby D. Moore; Kirk L. Meisner; Clark W. Chapman; Patrick C. Cooper; Robert D. Roepke; Michael R. Mitchell; Samuel M. Grimes; Dennis G. Dowell; Mark Battilana; and David Toporek, Plaintiffs/Appellants, v.PHOENIX NEWSPAPERS, INC.; Randy Collier; Darrow Tully; Richard Robertson; Tom Fitzpatrick; Pat Flannery; Tony Natale; Pat Murphy; Susan Leonard; Phil Sunkel; Alan Moyer; Lynne Holt; Jay Brashear; John Kolbe; and Victor Dricks, Defendants/Appellees.

No. CV-87-0379-PR.

Supreme Court of Arizona.

Oct. 26, 1989.

Reconsideration Denied Dec. 19, 1989.

Witwer, Burlage, Poltrock & Giampietro by Wayne B. Giampietro, Chicago, Ill., and Marton & Hall, P.A. by Kraig J. Marton, Phoenix, for plaintiffs/appellants.

Gust, Rosenfeld & Henderson by James F. Henderson, Terrance C. Mead, Phoenix, for defendants/appellees.

Opinion of the Court of Appeals, Division One, 155 Ariz. 389, 746 P.2d 1319(Ct.App.1987) vacated.

FELDMAN, Vice Chief Justice.

Richard G. Godbehere, a former Maricopa County Sheriff, and several deputies and civilian employees of the sheriff's office (plaintiffs) brought this action against Phoenix Newspapers, Inc., the publisher of The Arizona Republic and Phoenix Gazette, and fourteen editors and reporters of the two newspapers (publishers), for libel and false light invasion of privacy.The trial court granted publishers' motion to dismiss for failure to state a claim as to the invasion of privacy claims, but refused to dismiss the other counts of the complaint.Plaintiffs appealed and the court of appeals affirmed.We granted review to determine whether Arizona should recognize a cause of action for false light invasion of privacy, and if so, what the proper standard should be.SeeRule 23, Ariz.R.Civ.App.P., 17B A.R.S.We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3)andA.R.S. § 12-120.24.

FACTS

In the spring and summer of 1985, publishers printed over fifty articles, editorials, and columns (the publications) about plaintiffs' various law enforcement activities.The publications stated that the plaintiffs engaged in illegal activities, staged narcotics arrests to generate publicity, illegally arrested citizens, misused public funds and resources, committed police brutality, and generally were incompetent at law enforcement.Plaintiffs alleged in their eighteen-count complaint that the publications were false, damaged their reputations, harmed them in their profession, and caused them emotional distress.

Publishers moved to dismiss all eighteen counts of the complaint for failure to state a claim, and the court dismissed the false light invasion of privacy claims.In so doing, the trial court relied on Rutledge v. Phoenix Newspapers, Inc., 148 Ariz. 555, 715 P.2d 1243(Ct.App.1986), which held that a plaintiff must prove the elements of intentional infliction of emotional distress to claim false light invasion of privacy.The trial court found the acts in question were not so extreme or outrageous as to constitute the tort of intentional infliction of emotional distress.Minute Entry (filed June 18, 1986).

On appeal, plaintiffs argued that Arizona should follow the Restatement (Second) of Torts§ 652E(1977)(hereafter Restatement), which provides in part:

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.

The court of appeals rejected the Restatement position as inconsistent with its own prior authority.Godbehere v. Phoenix Newspapers, Inc., 155 Ariz. 389, 391, 746 P.2d 1319, 1321(Ct.App.1987)(citing Rutledge;Duhammel v. Star, 133 Ariz. 558, 653 P.2d 15(Ct.App.1982);Cluff v. Farmers Insurance Exchange, 10 Ariz.App. 560, 460 P.2d 666(1969)).

We accepted plaintiffs' petition for review to decide whether Arizona should follow Restatement§ 652E, recognizing the tort of false light invasion of privacy without requiring plaintiffs to prove all the elements of the tort of intentional infliction of emotional distress.

DISCUSSION

A.Development of the Right of Privacy

In 1890, Samuel Warren and Louis Brandeis published an article advocating the recognition of a right to privacy as an independent legal concept.Warren & Brandeis, The Right to Privacy, 4 HARV.L.REV. 193(1890).Explaining how courts traditionally recognized claims involving injury to a person's private thoughts or feelings, they also described how courts used contract and property law to protect thoughts, ideas, or expressions from wrongful appropriation.Id.Warren and Brandeis contended these were nothing more than "instances and applications of a general right to privacy."Id. at 198.Hence, they supported recognition of the right "to be let alone."Id. at 203.

In 1905 the Georgia Supreme Court recognized the privacy right in a case involving wrongful appropriation of the plaintiff's name and likeness.Pavesich v. New England Life Insurance Co., 50 S.E. 68(Ga.1905).Controversy over recognition of a right to privacy continued, although the Restatement of Torts recognized an independent cause of action for interference with privacy in 1939.Restatement (First) of Torts§ 867(1939).A majority of jurisdictions eventually recognized the right in some form.PROSSER AND KEETON ON THE LAW OF TORTS§ 117, at 850-51 (5th ed. 1984)(hereafter PROSSER & KEETON).

In 1960, Dean Prosser concluded that four separate torts had developed under the right of privacy rubric: (1) intrusion on the plaintiff's seclusion or private affairs; (2) public disclosure of embarrassing private facts; (3) publicity placing the plaintiff in a false light in the public eye; and (4) appropriation of the plaintiff's name or likeness for the defendant's advantage.Prosser, Privacy, 48 CALIF.L.REV. 383(1960).In 1977, the Restatement adopted Prosser's classification.SeeRestatement§ 652A-I (1977).Although each tort is classified under invasion of privacy, they"otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff'to be let alone.' "PROSSER &KEETON § 117, at 851.

B.Privacy in Arizona

Arizona first recognized an action for invasion of privacy in Reed v. Real Detective Publishing Co., 63 Ariz. 294, 162 P.2d 133(1945).Reed involved the unauthorized publication of the plaintiff's photograph.Subsequently, our court of appeals recognized the Restatement's four-part classification of the tort.SeeRutledge, 148 Ariz. at 556, 715 P.2d at 1244;Cluff, 10 Ariz.App. at 563, 460 P.2d at 669.

Although most jurisdictions that recognize a cause of action for invasion of privacy have adopted the Restatement standard of "highly offensive to a reasonable person" or a similar standard, seeNote, Is Invasion of Privacy a Viable Cause of Action in Arizona?: Rethinking the Standard, 30 ARIZ.L.REV. 319, 331 n. 96(1988), Arizona courts of appeals' decisions have imposed a stricter standard.Rather than following the Restatement, these decisions have held that where the damage alleged is emotional, the plaintiff must prove the elements of the tort of intentional infliction of emotional distress in addition to proving invasion of privacy.To recover for invasion of privacy, a plaintiff must show that the defendant's conduct was "extreme and outrageous."¹No other state requires a plaintiff to prove that the defendant committed "outrage" in a false light action.SeeAnnotation, False Light Invasion of Privacy-Cognizability and Elements, 57 A.L.R.4th 22(1987);Note, supra, 30 ARIZ.L.REV.at 338.

Publishers urge this court to adopt the court of appeals' view.They argue that there is no need for an independent tort of false light invasion of privacy because the action overlaps two other recognized torts: defamation and intentional infliction of emotional distress.These, publishers contend, cover the field and permit recovery in meritorious cases, thus making the false light action an unnecessary burden on the media's first amendment rights.To consider this argument, we must examine the distinctions between the false light action and the torts of intentional infliction of emotional distress and defamation.

C.False Light Invasion of Privacy and Intentional Infliction of Emotional Distress

Arizona has turned to Restatement§ 46 to define intentional infliction of emotional distress, also known as the tort of outrage.Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585(1987).This section provides:

(1) one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

The element of "extreme and outrageous conduct" requires that plaintiff prove defendant's conduct exceeded "all bounds usually tolerated by decent society ... and [caused] mental distress of a very serious kind."PROSSER &KEETON § 12, at 60.This standard distinguishes "true claims from false ones, and ... the trifling insult or annoyance from the serious wrong."Prosser, Mental Suffering, 37 MICH.L.REV. 874, 877(1939);see alsoRestatement§ 46 comments b, d, and f.

The court of appeals has advanced two main reasons to justify imposing the...