Pierson v. News Group Publications, Inc.

• Decision Date: 24 September 1982
• Docket Number: Civ. A. No. CV181-173.
• Citation: 549 F. Supp. 635
• Parties: James P. PIERSON, Plaintiff, v. NEWS GROUP PUBLICATIONS, INC., Defendant.
• Court: U.S. District Court — Southern District of Georgia

549 F. Supp. 635

James P. PIERSON, Plaintiff, v. NEWS GROUP PUBLICATIONS, INC., Defendant.

Civ. A. No. CV181-173.

United States District Court, S.D. Georgia, Augusta Division.

September 24, 1982.

COPYRIGHT MATERIAL OMITTED

Percy J. Blount, Blount & Curry, Augusta, Ga., for plaintiff.

R. Carl Cannon, Daryll Love, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., Squadron, Ellenoff, Plesent & Lehrer, Neal M. Goldman, Slade R. Metcalf, New York City, for defendant.

ORDER

BOWEN, District Judge.

This diversity action involves issues of alleged invasion of privacy and intentional infliction of emotional distress arising from the publication of two articles in The Star, a tabloid published by defendant News Group Publications, Inc. The case is now before the Court on defendant's motion for summary judgment. From the record the following undisputed facts appear:

A reporter, Michael Munro, and a freelance photographer, Harry Siskind, were sent to Fort Gordon, Georgia by The Star to cover a prisoner of war training program (the program or POW training) conducted by the United States Army. The program subjected army trainees to simulated POW treatment that could be expected by a captive during war. Munro and Siskind received permission from the Fort Gordon Public Affairs Office to cover a training session. They were introduced to a platoon, led by plaintiff Lt. James Pierson, about to undergo training. The platoon and the plaintiff were told that Munro and Siskind would be present during the training gathering information for a news article. It is disputed whether the platoon was told that Munro and Siskind were from The Star or from another organization.

During the course of the session, Pierson was strung up between two trees, handcuffed to a tree, locked in a sand box, and hosed down with water in 40 degree weather clad only in his underwear. He was also pulled behind a pickup truck. Eventually he was taken to the military hospital suffering from hypothermia.

The first article, published December 9, 1980, described the training and focused on Pierson and several other trainees. A second, follow-up article appeared several months later and reported the reaction to the army's training program. In describing the plaintiff's training, the first article, in pertinent part, reads:

A savage military exercise, in which American GIs pretended to be prisoners of war, was called off after the brutal and terrifying tactics of their Army mates left one lieutenant near death and 19 other soldiers in the hospital.

* * * * * *

The worst torture was reserved for those GIs who refused to give their mock-Soviet antagonists more than the customary name, rank and serial number.

Lt. James Pierson, 32, leader of the group, was strung up, locked in the sandbox, hosed down and dragged behind a pickup truck before pretending to break down and give the `enemy' everything they wanted.

When the MPs and interrogators learned he was lying, he was stripped, hosed down again for three hours, and dragged for three miles behind the truck before throwing a fit.

Lt. Pierson was rushed to the hospital where doctors were shocked by his subnormal body temperature and contacted the base. Medical authorities warned that Pierson could die if his condition worsened, and an emergency alert finally canceled the POW exercise. But by then, the grueling course had already taken a severe toll.

Photographs depicting plaintiff, in only underwear, except for one, strung up between two trees, handcuffed to another tree, being hosed down and being carried to an ambulance accompanied the article. Photographs of the plaintiff were not the only ones published, nor was he the only trainee whose experiences were detailed by the story.

Although the basic treatment as described in the article is not disputed, certain attendant details are controverted. For example, Pierson alleges he was never dragged behind a pickup truck, but was only pulled once. Also, he was never hosed down for three hours. It is alleged that it was probably no more than fifteen minutes. Contrary to the article, plaintiff asserts his disbelief that he was near death at any time, and, furthermore, he was never told by medical personnel that he would die if his condition worsened. Moreover, shortly after being taken to the hospital and treated he was released.

Plaintiff alleges the articles contained lies, half-truths, and inaccuracies and generally misrepresented, sensationalized and fictionalized the training program. He contends he never authorized The Star the use of his name or likeness and because of the defendant's use he has suffered embarrassment, humiliation, extreme emotional distress, ridicule and public scorn. Furthermore, because the first article misrepresented and falsely depicted the training, it cast him in a false light that made him appear weak and submissive.

The defendant filed a motion for summary judgment which the plaintiff opposes. As is well known, on a motion for summary judgment, the non-moving party enjoys the benefit of the doubt and is not required to produce any evidence until, and unless, the moving party shows the absence of any genuine issue of material fact. Then, the burden shifts to the opposing party to demonstrate the existence of a genuine issue of material fact. In reviewing the record, the evidence is viewed in a light favorable to the opposing party and all reasonable inferences inure to his benefit.

I

Addressing first plaintiff's alleged invasion of privacy claim, it is noted that under Georgia caselaw the concept of invasion of privacy encompasses four loosely related but distinct torts, as follows:

a) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs;

b) public disclosure of embarrassing private facts about the plaintiff;

c) publicity which places the plaintiff in a false light in the public eye; and,

d) appropriation for the defendant's advantage, and of the plaintiff's name and likeness.

Cabaniss v. Hipsley, 114 Ga.App. 367, 370, 151 S.E.2d 496 (1966). Although plaintiff does not specifically allege each tort, he does allege generally an invasion of privacy. Moreover, plaintiff's intention to allege all four can be inferred from the fact that both parties deal with all four in their summary judgment briefs. Accordingly, the complaint will be construed as alleging all four torts.

Before applying a summary judgment analysis to each privacy tort, a broader issue must be resolved. Defendant asserts there is no invasion of privacy present in this case because the articles dealt with a matter of public interest which is not limited by the right to privacy. Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344 (1967). This is essentially the same privilege mandated by the first amendment to the United States Constitution. Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). It is recognized that the publication and dissemination of matters of public interest and concern is necessary to the maintenance of an informed public. See Cox Broadcasting Corp. v. Cohen, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). As reflected by Cox, the truthful publication of matter pertaining to legitimate public interest can never expose the publishers to liability. Even publications of erroneous statements of facts, although not worthy of protection, come within the first amendment privilege acknowledging the inevitability of mistake in open debate and discussion and the distasteful consequences of self-censorship. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The Supreme Court, in its gingerly handling of first amendment cases, has "been especially anxious to assure to the freedoms of speech and press that `breathing space' essential to their fruitful exercise" in accommodating the competing interests of free expression and recovery for wrongful injury. 418 U.S. at 342, 94 S.Ct. at 3008.

A publication, however legitimate the subject matter may be to the public interest, can overstep the "breathing space" and beyond any first amendment privilege. Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), a false-light invasion of privacy action, the Supreme Court was faced with the issue of when may a state provide for the redress for the false reporting of matters of public interest in a right to privacy context. Although Time, Inc. was not a defamation action, the Court looked to its decisions in that area for guidance. The Court held that recovery under the New York statute in issue was constitutionally permissible if it was established that defendant published the report "with knowledge of its falsity or in reckless disregard of the truth." Id. at 388, 87 S.Ct. at 542.

With respect to the Georgia law of privacy, which is woefully undeveloped, it follows that the four privacy tort actions are precluded if the publication is of a newsworthy event that is not within the Time, Inc. proscription. Of course, the determination of whether the publication has met the Time, Inc. standard is one for the jury. Time, Inc., at 394, fn. 11, 87 S.Ct. at 545 fn. 11. Even the common law privilege stated in Waters, supra, if distinguishable from the first amendment privilege, is subject to limitation. The seminal Georgia privacy case of Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68 (1905), recognized that the freedoms of press and speech could not be exercised abusively. The Pavesich court viewed the right of privacy and of press and speech as checks upon each other. Id. at 205, 50 S.E. 68. As Justice Cobb cogently stated in Pavesich:

The truth may be spoken, written, or printed about all matters of a public nature, as well as matters of a private nature in which the public has a legitimate interest ... But there may arise cases where the speaking or printing of the truth might

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