Hall v. Post, 340PA87

• Decision Date: 06 October 1988
• Docket Number: No. 340PA87,340PA87
• Parties: , 15 Media L. Rep. 2329 Susie HALL v. Rose POST and The Post Publishing Company, Inc., d/b/a The Salisbury Post. Mary H. HALL v. Rose POST and The Post Publishing Company, Inc., d/b/a The Salisbury Post.
• Court: North Carolina Supreme Court

Page 711

372 S.E.2d 711

323 N.C. 259, 15 Media L. Rep. 2329

Susie HALL v. Rose POST and The Post Publishing Company, Inc., d/b/a The

Salisbury Post.

Mary H. HALL v. Rose POST and The Post Publishing Company, Inc., d/b/a The

Salisbury Post.

No. 340PA87.

Supreme Court of North Carolina.

Oct. 6, 1988.

Palmer, Miller, Campbell & Martin, P.A. by Joe T. Millsaps, Charlotte, for plaintiffs-appellees.

Adams, McCullough & Beard by H. Hugh Stevens, Jr., Steven J. Levitas and Pope McCorkle, III, Raleigh, and Woodson, Linn, Sayers, Lawther & Short by Donald D. Sayers, Salisbury, for defendants-appellants.

Smith, Helms, Mulliss & Moore by E. Osborne Ayscue, Jr., Jonathan E. Buchan and James G. Middlebrooks, Charlotte, for The Knight Pub. Co. and The North Carolina Press Ass'n, Inc., amici curiae.

Tharrington, Smith & Hargrove by Wade H. Hargrove and Mark J. Prak, Raleigh, for The North Carolina Ass'n of Broadcasters, Inc., The Radio--Television News Directors Ass'n of the Carolinas, The Associated Press, The News and Observer Publishing Company, Wilmington Star-News, Inc., Hendersonville Newspaper Corp., The Dispatch Publ. Co., and TSP Newspapers, Inc., amici curiae.

Womble, Carlyle, Sandridge & Rice by Charles F. Vance, Jr., and W. Andrew Copenhaver Winston-Salem, for Piedmont Pub. Co., amicus curiae.

Haywood, Denny, Miller, Johnson, Sessoms & Patrick by George W. Miller, Jr., Durham, for The Durham Herald Co., Inc., amicus curiae.

Smith, Helms, Mulliss & Moore by Alan W. Duncan, Greensboro, for The Greensboro News & Record, Inc., amicus curiae.

MITCHELL, Justice.

In the present case, this Court must decide whether claims for tortious invasion of privacy by truthful public disclosure of "private" facts concerning the plaintiffs are cognizable at law in North Carolina. We hold that they are not and reverse the decision of the Court of Appeals.

The plaintiffs, Susie Hall and her adoptive mother, Mary Hall, brought separate civil actions against the defendants for invasion of privacy. The actions were based upon two articles printed in The Salisbury Post and written by its special assignment reporter, Rose Post. The defendants answered asserting among other things that each plaintiff's complaint failed to state a claim upon which relief could be granted. The defendants moved for summary judgment in both actions, and a consolidated hearing was held on their motions. The trial court entered summary judgment for the defendants in both cases on 20 May 1986.

The plaintiffs' cases were consolidated for purposes of appeal. The Court of Appeals concluded that summary judgment for the defendants had been improperly granted and reversed the trial court. On 23 June 1987, the defendants petitioned this Court for discretionary review of the decision of the Court of Appeals. On 28 July 1987, we allowed discretionary review.

The pleadings and affidavits forming the forecast of evidence at the hearing on the defendants' motions for summary judgment tended to establish that, on 18 July 1984, The Salisbury Post published an article by Rose Post which bore the headline "Ex-Carny Seeks Baby Abandoned 17 Years Ago." The article concerned the search by Lee and Aledith Gottschalk for Aledith's daughter by a previous marriage, whom she and her former husband had abandoned in Rowan County in September of 1967. The article told of Aledith's former marriage to a carnival barker named Clarence Maxson, the birth of their daughter in 1967, their abandonment of the child at the age of four months, events in Aledith's life thereafter, and her return to Rowan County after seventeen years to look for the child. The article indicated that Clarence Maxson had made arrangements in 1967 for a babysitter named Mary Hall to keep the child for a few weeks. Clarence and Aledith then moved on with the carnival, and Clarence later told Aledith that he had signed papers authorizing the baby's adoption.

Aledith was married to Lee Gottschalk in 1984, and they decided to travel to Rowan County to look for Aledith's child. The newspaper article of 18 July 1984 related the details of their unsuccessful search and then stated:

If anyone, they say, knows anything about a little blonde baby left here when the county fair closed and the carnies moved on in September 1967, Lee and Aledith Gottschalk can be reached in Room 173 at the Econo Motel.

Shortly after the article was published, the Gottschalks were called at the motel and informed of the child's identity and whereabouts.

The defendants published a second article on 20 July 1984 reporting that the Gottschalks had located the child with the aid of responses to the earlier article. The second article identified the child as Susie Hall and identified her adoptive mother as Mary Hall. The article related the details of a telephone encounter between the Gottschalks and Mrs. Hall and described the emotions of both families.

The plaintiffs alleged that they fled their home in order to avoid public attention resulting from the articles. Each plaintiff alleged that she sought and received psychiatric care for the emotional and mental distress caused by the incident.

The defendants have contended at all times that the imposition of civil liability for their truthful public disclosure of facts about the plaintiffs would violate the First Amendment to the Constitution of the United States. The defendants have contended in the alternative that this Court should refuse to adopt any tort which imposes liability for such conduct as a part of the common law of this State.

Although the plaintiffs contended before the Court of Appeals that their claims constituted valid claims both for public disclosure of embarrassing private facts and for intrusion upon the plaintiffs' seclusion or solitude or into their private affairs, we agree with the Court of Appeals that the intrusion branch of the invasion of privacy tort is not involved here. Hall v. Post, 85 N.C.App. at 615, 355 S.E.2d at 823-24. Therefore, we strictly limit our consideration in the present case to issues concerning the private facts branch of the invasion of privacy tort. We neither consider nor decide whether any other tort is constitutional or cognizable at law upon facts such as those presented here.

It is well known that the concept of a right of privacy recognizable in law appears to have originated in a law review article by Louis D. Brandeis, later a Justice of the Supreme Court of the United States, and his law partner, Samuel D. Warren. Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). The fact that Brandeis, then only thirty-three years of age, failed to foresee the constitutional problems arising from the views set forth in the article is not very remarkable, since no court in 1890 had held that the First Amendment would be applied to the states through the Fourteenth Amendment. Cf. Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833) (holding that the Bill of Rights did not apply to the states). Indeed, the Supreme Court of the United States did not begin to recognize First Amendment incorporation until the end of the first quarter of the twentieth century. See, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927); Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).

In 1916--twenty-six years after the article on privacy was published--Brandeis became a Justice of the Supreme Court. In a landmark concurring opinion which established his reputation as a constitutional scholar, he fully accepted the doctrine of First Amendment incorporation. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).

Since the publication of the nineteenth century Warren and Brandeis article in the Harvard Law Review, two different broad categories of privacy rights have evolved. See generally Annotation, Supreme Court's Views As To The Federal Legal Aspects Of The Right Of Privacy, 43 L.Ed.2d 871, 875-76 (1975). One is the constitutional right of privacy which protects personal privacy from certain types of governmental intrusion. See, e.g., Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The other is the general right of privacy, violations of which have been viewed by some as giving rise to a tort composed of four branches, only one of which is of concern in the present case. This Court has recently acknowledged that, as to this general right to privacy:

A review of the current tort law of all American jurisdictions reveals cases identifying at least four types of invasion of four different interests in privacy: (1) appropriation, for the defendant's advantage, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's seclusion or solitude or into his private affairs; (3) public disclosure of private facts about the plaintiff; and (4) publicity which places the plaintiff in a false light in the public eye. See W. Prosser, Handbook of the Law of Torts § 117 (4th ed. 1971) (emphasis added).

Renwick v. News and Observer, 310 N.C. 312, 322, 312 S.E.2d 405, 411, cert. denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984).

In the present case, we consider for the first time that branch of the invasion of privacy tort which is most commonly referred to as the "public disclosure of private facts." The plaintiffs have at all times acknowledged that the facts published about them by the defendants were true and accurate in every respect, but they contend, nevertheless, that they are entitled to recover.

Under the definition of the private facts tort set out in the Restatement (Second) of Torts, liability will be imposed for publication of "private facts" when "the...