Ross v. Midwest Communications, Inc.

• Citation: 870 F.2d 271
• Decision Date: 31 March 1989
• Docket Number: No. 88-2105,88-2105
• Parties: 16 Media L. Rep. 1463 Marla ROSS, Plaintiff-Appellant, v. MIDWEST COMMUNICATIONS, INC., d/b/a WCCO Television, Andy Greenspan and Al Austin, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 271

870 F.2d 271

16 Media L. Rep. 1463

Marla ROSS, Plaintiff-Appellant, v. MIDWEST COMMUNICATIONS, INC., d/b/a WCCO Television, Andy Greenspan and Al Austin, Defendants-Appellees.

No. 88-2105.

United States Court of Appeals, Fifth Circuit.

March 31, 1989.

Rehearing Denied April 27, 1989.

John K. Schwartz, Richard L. Tate, Richmond, Tex., for plaintiff-appellant.

David H. Donaldson, Jr., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A television station broadcast a documentary questioning the guilt of a man convicted of rape. To make its case, the documentary spelled out the details of several rapes. One rape victim sued the maker of the documentary, claiming an invasion of privacy. Her actual first name and a picture of her residence had been used in the documentary. The district court granted summary judgment for the journalists on both state law and constitutional grounds. The rape victim appeals. We affirm, holding that no liability can attach under Texas law because the details reported were newsworthy as a matter of law.

I

Marla Ross, the plaintiff-appellant in this case, was raped in 1983. She reported the rape to police, but the rape remains unsolved. During the investigation of the rape, Steven Fossum was a suspect. The police asked Ross to view a line-up that included Fossum. Ross said that the man who raped her was not among those in the line-up.

Fossum was however convicted of two other rapes. In 1986, WCCO-TV (Midwest Communications, Inc.), and its reporters Al Austin and Andy Greenspan, prepared a documentary designed to prove Fossum's innocence. WCCO, Austin, and Greenspan are the defendant-appellees in this case. In addition to presenting other evidence, WCCO's documentary sought to show that the details of the first rape for which Fossum had been convicted were nearly identical to the details of the Ross rape. WCCO suggested that the two rapes were probably committed by the same person, and that Ross's failure to identify Fossum as the rapist in her case indicated that he was innocent of both rapes. In order to demonstrate the similarity of the two rapes, WCCO described the pretext used by the rapist to gain entrance to the victim's home (the rapist claimed to work for Genex Homes, to have lost an Irish Setter, and to desire to make a phone call), the sexual demands of the rapist during the assault, and the rapist's fixation with baths and showers. WCCO also mentioned some details which Ross claims were inaccurate with respect to her rape, including the rapist's use of a jar of coins or trinkets, balanced on the bound victim's body, as an alarm to aid his escape.

WCCO referred to Ross as "Marla," her actual first name, during the documentary. WCCO used in the documentary an actual photograph of the house in which Ross lived at the time of the rape.

The documentary aired in Houston in May of 1986. The Governor of Texas pardoned Fossum for the second of the two rapes. That was not the rape to which the Ross case was relevant. A motion for new trial on the first rape conviction, the Susan Lewis rape, was pending at the time this case was briefed. The documentary received the Dupont Columbia Award, which WCCO claims is "the most prestigious award in broadcast journalism."

In September 1986, Ross and her husband sued WCCO, Greenspan, Austin, and Belo Broadcasting in Texas state court for invasion of privacy. Defendants WCCO, Greenspan, and Austin were Minnesota residents, and removed on the basis of diversity. Ross later dropped her suit against Belo Broadcasting, the only local defendant. WCCO, Austin, and Greenspan sought summary judgment. The district court granted summary judgment for defendants on both state law and Constitutional grounds. The court reasoned that because Fossum's interest and the public's interest in reversing false convictions outweighed Ross's privacy interest, the journalists had no liability.

II

On appeal, neither party urges us to endorse the open-ended balancing of interests performed by the district court and we do not. We are not bound to accept the district court's rationale for its decision, and are free to affirm the district court's decision on alternative grounds, if those grounds have been properly preserved.

WCCO suggests two grounds for affirmance. Both grounds were submitted to the district court. First, WCCO contends that the details of the Ross rape bore a logical nexus to matters of legitimate public concern, so that both Texas state tort law and federal constitutional law prohibit the imposition of liability for the publication of those details. See Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Texas 1976) (no state law liability for invasion of privacy if the details published were "of legitimate public concern"); Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir.1980) (identifying, by reference to common law rules, a First Amendment privilege "to publish or broadcast news or other matters of public interest").

Second, WCCO contends that the details published come within the scope of the bright-line rule articulated in Cox Broadcasting Corp. v. Cohn, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (publication of matters of public record). Alternatively, WCCO, relying upon Cox Broadcasting and later cases including Smith v. Daily Mail Publishing, 443 U.S. 97, 102-03, 99 S.Ct. 2667, 2670-71, 61 L.Ed.2d 399 (1979), asks us to recognize a broader bright-line rule, one which would preclude the states from imposing liability for any publication of truthful information lawfully obtained.

Under the familiar maxims set out by Justice Brandeis in Ashwander v. Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), this court will not pass upon a constitutional question if a statutory ground is available, and will not formulate a broader constitutional rule than the facts of a particular case require. Both lines of reasoning proposed by WCCO are of constitutional dimension. In the "newsworthiness" line of argument, however, the state law and constitutional tests are the same. The First Amendment restrictions we identify in that line of inquiry are no different from those imposed on the privacy tort by the terms of Texas state law itself. By contrast, the bright-line rules contended for by WCCO either establish independent limitations upon the state's ability to define the scope of the "newsworthiness" defense, or go beyond that defense to establish protection for some arguably non-newsworthy publications. In order to avoid announcing constitutional restrictions unnecessarily, and so in adherence to the counsels of Ashwander, we begin our analysis with the "newsworthiness" line of argument.

Under Texas law, an action for invasion of privacy will lie for four sorts of injuries:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Texas 1976), quoting W. Prosser, Privacy, 48 Cal.L.Rev. 383, 389 (1960). The first of these injuries exists only when there has been "a physical invasion of a person's property or ... eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying." Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.--Fort Worth 1982). Ross's suit must therefore be considered under the rubric of the second form of injury, public disclosure of embarrassing facts.

Ross, "in order to recover for public disclosure of private facts about [herself], must show (1) that publicity was given to matters concerning h[er] private life, (2) the publication of which would be highly offensive to a reasonable person of ordinary sensibilities, and (3) that the matter publicized is not of legitimate public concern." Industrial Foundation, 540 S.W.2d at 682, citing W. Prosser, Law of Torts Sec. 117, p. 809 (4th ed.1971).

To apply this test, we must first ascertain what "private facts" Ross is alleging WCCO to have disclosed. There are at least three possibilities: (A) the details of the rape itself; (B) the allegedly false details included in the report; and (C) Ross's first name and the appearance of her former residence.

Ross has contended vigorously that the details of the rape were themselves "private facts." Yet these facts were clearly of "legitimate public concern." The Ross brief itself effectively concedes as much. With respect to WCCO's suggestion that Fossum is innocent of the Lewis rape because innocent of the Ross rape, the brief says, "WCCO's theory was intriguing and, if verifiable, undoubtedly worthy of public disclosure in one form or another." The brief adds the proviso that "the facts of Mrs. Ross's rape did not fit the theory," but this proviso amounts at most to an argument that WCCO's theory was wrong. That argument does not generate a material issue of fact as to whether the theory addressed a matter of legitimate public concern. The details of the Ross rape are relevant to Fossum's innocence, a legitimate matter of public concern, so long as the Ross and Lewis rapes are sufficiently similar to generate a reasonable argument that the rapes were committed by the same individual. The argument need not be convincing to all, or even most, of its auditors. It need only be, as Ross's brief nicely puts it, reasonably "intriguing" to a concerned public.

There is no doubt that WCCO's report on the Ross and Lewis rapes meets this standard. The excuses used by each rapist to enter the victims' homes were...