Heath v. Playboy Enterprises, Inc.

• Decision Date: 23 February 1990
• Docket Number: No. 89-6065-CIV.,89-6065-CIV.
• Citation: 732 F. Supp. 1145
• Parties: Sally HEATH, as Guardian Ad Litem for Jane Doe, a Minor Child, Plaintiff, v. PLAYBOY ENTERPRISES, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — Southern District of Florida

732 F. Supp. 1145

Sally HEATH, as Guardian Ad Litem for Jane Doe, a Minor Child, Plaintiff, v. PLAYBOY ENTERPRISES, INC., a Delaware corporation, Defendant.

No. 89-6065-CIV.

United States District Court, S.D. Florida.

February 23, 1990.

Jon E. Krupnick, Krupnick, Campbell, Malone and Roselli, Fort Lauderdale, Fla., for plaintiff.

James C. Cunningham, Jr., Frates, Bienstock & Sheehe, Miami, Fla., for defendant.

Kenneth P. Norwick, Norwick & Schad, New York City.

MEMORANDUM ORDER

SCOTT, District Judge.

In this action, Sally Heath as the guardian ad litem for Jane Doe, a minor child, sues the publishers of Playboy magazine, Playboy Enterprises, Inc., ("PEI") for invasion of privacy. PEI published the child's photograph with an account of her paternity in "The Year In Sex" issue of Playboy. Defendant has moved for summary judgment.

I. BACKGROUND

A. Facts

The facts are not in dispute. In 1987, Tanena Love ("Love") brought a paternity action against Christopher Carson ("Carson") in the Seventeenth Judicial Circuit Court of Florida on behalf of Cristal Love Carson ("Cristal"), her minor child. Carson is the son of Johnny Carson, the late night television talk show host. The circuit court ultimately ruled in favor of Love and ordered Carson to pay $175.00 per month in child support for Cristal.

The hearings on the paternity action were open to the public and received extensive news coverage. Television crews and other members of the media appeared at the Broward County Courthouse to report on the paternity action. Newspaper and magazine accounts of the proceedings appeared regularly.¹ Love posed with Cristal for numerous media photographs, gave interviews and appeared on several television talk shows.²

This lawsuit arises from PEI's account of the paternity action in the March 1988, issue of Playboy entitled "The Year In Sex." A photograph of Love holding her daughter Cristal appeared with a brief text recapping Love's paternity action in a section of the issue entitled "Sex Styles of the Rich and Famous." The photograph was taken on the steps of the Broward County Courthouse during one of Love's court appearances. The text next to the photograph states:

HEEERE'S CHRISTAL sic! Johnny Carson's number one son, Christopher, was ordered to pay $175 weekly in child support for year-old Christal sic Love Carson, his daughter by aspiring actress Tanena Love Green. Johnny's youngest boy, Cory, has also fathered an illegitimate child.

The photograph and text share the page with the "Mayflower Madam" (dressed) and face a page picturing Bebe Buell, David Bowie's former girlfriend (seminude).

B. Procedural History

On January 3, 1989, Sally Heath, as guardian ad litem for Cristal, filed this action against PEI based on the March 1988, issue of Playboy.³ The complaint alleged three counts: invasion of privacy by placing Cristal in a false light, violation of Florida Statute § 540.08 (commercial exploitation), and violation of a duty to protect minors from sexual exploitation. PEI removed this action from the Circuit Court on January 20, 1989.⁴

On February 2, 1989, PEI moved to dismiss the complaint. In response, Plaintiff amended her complaint to correct a technical defect in the pleading.⁵ PEI moved to dismiss for a second time. In response, Plaintiff abandoned the second and third counts and rested solely on a recharacterized invasion of privacy claim.⁶

This Court heard arguments on the motion to dismiss on March 28, 1989. PEI argued that Florida law does not recognize a cause of action for publication of public, newsworthy facts. Plaintiff contended, however, that an issue of fact remained as to PEI's duty to recognize the antagonistic interests between the mother and her child. Accordingly, Plaintiff urged the Court to deny the motion to dismiss pending discovery.

Despite the Court's doubts as to the sufficiency of the complaint, in an abundance of caution, the Court acceded to Plaintiff's request. We gave the parties notice that the motion to dismiss would be converted into a motion for summary judgment, pursuant to Rule 12(b). At the end of discovery, Defendant filed its motion for summary judgment with a lengthy memorandum of law and supporting affidavits.⁷ In response, Plaintiff filed a three-page memorandum of law. Plaintiff did not file any affidavits or rely on any other products of discovery. Moreover, Plaintiff raised no disputed issue of fact for which a trial would be necessary. With the issue in the appropriate juxtaposition, we now proceed to resolve the merits.

II. DISCUSSION

Florida recognizes three theories of recovery under a common law invasion of privacy claim — publication of private facts, intrusion upon seclusion, and placing facts in a false light. Cape Publications v. Hitchner, 549 So.2d 1374 (Fla.1989); Guin v. City of Riviera Beach, 388 So.2d 604 (4th DCA 1980); Jacova v. Southern Radio and Television Co., 83 So.2d 34 (Fla.1955). A fourth theory of recovery, appropriation for commercial benefit, is statutory in Florida. Fla.Stat. § 540.08 (1988).

Plaintiff has failed to specify the basis for her invasion of privacy claim. Independently, the Court has identified the publication of private facts as the only theory relevant to the facts before us.⁸

A. Publication of Private Facts

Florida has adopted the Restatement's test of invasion of privacy based on publication of private facts. Cape Publications v. Hitchner, 549 So.2d 1374 (Fla. 1989). Plaintiff must prove four elements:

1. the disclosure was public;

2. private facts were disclosed;

3. the matter publicized was highly offensive to a reasonable person, and

4. the matter is not a legitimate concern to the public.

Hitchner, 549 So.2d at 1377 (citing Restatement (Second) of Torts § 652D (1977)).

PEI contends that the photograph of Love and Cristal was taken in a public place and was therefore not a private fact. Plaintiff does not dispute that the photograph published in Playboy was taken in front of the Broward County Courthouse during one of Love's court appearances. A photograph taken in a public place is not private. Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (photograph of eleven year-old boy taken in connection with juvenile proceeding involving that child and attended by reporters was not private); Cape Publications, Inc. v. Bridges, 423 So.2d 426, 427 (5th DCA 1982), review denied, 431 So.2d 988 (1983), cert. denied, 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 229 (1983) (photograph of woman clutching dish towel to her body to conceal her nudity as she was escorted to police car after kidnapping was "in full public view"); Ault v. Hustler Magazine, 860 F.2d 877, 883 (9th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1989) (when a person agrees to be photographed for a newspaper, the photograph is not a private concern); Jackson v. Playboy Enterprises, Inc., 574 F.Supp. 10, 11 (S.D.Ohio 1983) (photographs of three minor boys and policewoman on city sidewalk in plain view of the public eye were not "purely private activity"); Prosser, Torts, §§ 809, 811. Therefore, the photograph of Love and Cristal in the March 1988, Playboy issue is not a private fact as a matter of law.

Plaintiff concedes that Cristal's paternity and child support award were disclosed in public judicial records. Facts taken from public records or proceedings are not private. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (statute held unconstitutional where it prohibited publication of name of rape victim that became known to public through official court records dealing with trial of rapist); Doe v. Sarasota-Bradenton Florida Television Co., Inc., 436 So.2d 328 (2d DCA 1983) (videotape of rape victim's testimony taken during public trial is not private); Boyles v. Mid-Florida Television Corp., 431 So.2d 627, 636 (5th DCA 1983), approved, 467 So.2d 282 (Fla.1985) (upholding television broadcast of facts taken from HRS summary report, classified by statute as public record). Therefore, the account of Love's paternity action and child support award as published in the March 1988, issue of Playboy included no private facts as a matter of law.

Plaintiff further concedes that the Carson paternity action generated extensive publicity of Love and Cristal long before the March, 1988, Playboy publication. At least twenty-seven magazines and newspapers published the story in some version. Personal appearances by Love and Cristal brought the story to audiences of local and national radio and television programs. Republication of facts already publicized elsewhere cannot provide a basis for an invasion of privacy claim.⁹ Valentine v. C.B.S., Inc., 698 F.2d 430, 433 (11th Cir. 1983) (song lyrics did not disclose private facts but merely detailed events previously disclosed through public trial testimony); Faloona v. Fredrickson v. Hustler Magazine, Inc., 799 F.2d 1000, 1006 (5th Cir. 1986), reh'g denied, 802 F.2d 455 (5th Cir. 1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987) (since photographs printed in Hustler magazine had already been widely published elsewhere, Hustler revealed no private facts); Jackson, 574 F.Supp. at 11 (citing Restatement (Second) of Torts, § 625D, Comment b); Prosser & Keaton, The Law of Torts, § 117 (5th Ed.1984). The prior publication of all facts published in the March 1988, issue of Playboy further evidences their public nature. Republication of these facts cannot be actionable as an invasion of privacy as a matter of law.

PEI further contends that it purchased the photograph from a commercial photographer in New York and did not secure a release because the photograph was taken in public. The law supports the view that even otherwise private facts may become public when acquired by legitimate means. Cape Publications v. Hitchner, 549 So.2d 1374, 1378 (Fla.1989) (case file was obtained...