Itzkovitch v. Whitaker
| Citation | 39 So. 499,115 La. 479 |
| Decision Date | 20 November 1905 |
| Docket Number | 15,804 |
| Court | Supreme Court of Louisiana |
| Parties | ITZKOVITCH v. WHITAKER |
Action by Jacob Itzkovitch against Edward Stanley Whitaker. Exceptions to a rule nisi were overruled, and defendant prays for writs of prohibition and certiorari. Denied.
Samuel Louis Gilmore, City Atty. (Benjamin Rice Foreman, of counsel), for relators. Respondent Judge, pro se.
Solomon Wolff and Gustave Lemle, for respondent Itzkovitch.
Plaintiff complained of the inspector of police, who had his, plaintiff's, photograph taken, and who was about, he said, to have it placed in the rogues' gallery. He prayed to enjoin the defendant, inspector of police, and he averred damages in a sum over $ 2,000. He averred substantially that he is an old resident of the city, has a family, is engaged in legitimate business, pays his taxes and leads an honest life.
The judge of the district court issued a rule nisi and directed the defendant to show cause why he should not be enjoined.
An exception was filed to the rule nisi, in which he (defendant) stated that he had placed the picture in the rogues' gallery before plaintiff's petition had been filed and that he had forwarded copies to galleries in other states that he was acting in the discharge of his duty as inspector of police; and that the civil district court had no jurisdiction to enjoin him while he was enforcing the criminal laws.
In case this was overruled, he alleged, in substance, that defendant had been convicted of felony and that his character was notoriously bad.
The question of jurisdiction vel non is the first which presents itself for decision.
The exception as relates to jurisdiction was properly overruled.
For the purpose of the hearing of this exception, the allegations of plaintiff's petition for an injunction must be taken as true. They were not traversed in the original exception, and we conclude that the issues tendered in the original exception are those which the court passed upon in sustaining its jurisdiction.
The plaintiff, for the said hearing, must be considered an honest man. We think that the publication of an innocent man's photograph in the rogues' gallery gives rise to sufficient grounds to sustain an injunction.
There is a right in equity to protect a person from such an invasion of private rights.
Every one who does not violate the law can insist upon being let alone (the right of privacy). In such a case the right of privacy is absolute.
It must be said that there is some limit to this right, which it is not necessary to discuss in this case. A person may be arrested, imprisoned, and acquitted, without right to damages. All of this is true, but it bears no application to the issue in hand.
Where a person is not guilty, is honest (and that is the only light upon which to consider this case with the issues before us), he may obtain an injunction to prevent his photograph from being sent to the rogues' gallery.
He has the personal right to the restraining order, at least for the time being.
The theory in opposition to this view is substantially that the picture should be taken and exhibited for the public good.
There can be no public good subserved by taking the photograph of an honest man for the purpose before mentioned.
The court had jurisdiction to issue the preliminary injunction, and to make it perpetual if the evidence justifies the decree.
The difficulty consists in the fact that there is no evidence before the court. None was offered. We have only the bare allegations before us, and not a scintilla of evidence to sustain them.
It follows that all the district court did was to assume that the allegations were true and that they set forth sufficient to warrant the issuance of an injunction.
There has been no final decision. The injunction is merely provisional.
It having been finally decided that the court has jurisdiction, under the present state of the case it will be tried on all the issues presented, and a decision arrived at that will permanently decide all the issues.
This cannot be done at this time.
The injunction is not strictly mandatory. If it were, under the jurisprudence of this state there are injunctions that have been sustained in exceptional cases although slightly mandatory. The last utterance of this court was in State ex rel. Yale v. Judge, 41...
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Crump v. Beckley Newspapers, Inc.
... ... A short time later, Georgia and Louisiana judicially recognized a right to privacy. Pavesich v. New England Life Ins. Co., supra; Itzkovitch v. Whitaker, 115 La. 479, 39 So. 499 (1905). At present, every state has recognized some form of privacy action, either by statute or through case ... ...
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Sullivan v. Murphy
... ... Certain of these have been based upon improper use or dissemination of the records to unauthorized persons. See, e. g., Itzkovitch v. Whitaker, 115 La. 479, 39 So. 499 (1905) ; Schulman v. Whitaker, 117 La. 704, 42 So. 227 (1906) ; State ex rel. Reed v. Harris, 348 Mo. 426, 153 ... ...
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Detroit Free Press Inc. v. U.S. Dep't of Justice
...and legislatures intervened to protect the likenesses of “honest” individuals who had not been convicted, Itzkovi t ch v. Whitaker , 115 La. 479, 39 So. 499, 500 (1905) ; see also N.Y. Penal Law § 516 (1909); Downs v. Swann , 111 Md. 53, 73 A. 653, 656 (1909). But even after the development......
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The First Amendment and the Right(s) of Publicity.
...and loss of employment). Objections to being placed in the equivalent of a "rogues' gallery" are longstanding. See Itzkovitch v. Whitaker, 39 So. 499, 500 (La. 1905) ("Where a person is not guilty, [and] is honest... he may obtain an injunction to prevent his photograph from being sent to t......