Star-Telegram, Inc. v. Doe

• Decision Date: 07 March 1996
• Docket Number: No. D-4578,STAR-TELEGRAM,INC,STAR-TELEGRA,D-4578
• Parties: 23 Media L. Rep. 2492, 38 Tex. Sup. Ct. J. 718 The, d/b/a FORT WORTH; and Betsy C.M. Tong, Individually and as Journalist for Star-Telegram, Inc., d/b/a Fort Worth Star-Telegram, Petitioners, v. Jane DOE, Respondent.
• Court: Texas Supreme Court

Page 471

915 S.W.2d 471

23 Media L. Rep. 2492, 38 Tex. Sup. Ct. J. 718

The STAR-TELEGRAM, INC., d/b/a FORT WORTH STAR-TELEGRAM;

and Betsy C.M. Tong, Individually and as

Journalist for Star-Telegram, Inc.,

d/b/a Fort Worth

Star-Telegram, Petitioners, v. Jane DOE, Respondent.

No. D-4578.

Supreme Court of Texas.

Argued Oct. 18, 1994.

Decided June 8, 1995.

Rehearing Overruled March 7, 1996.

Thomas J. Williams, Fort Worth, for petitioners.

David L. Evans, Mark A. Haney, Richard C. DeBerry, Fort Worth, for respondent.

GAMMAGE, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HIGHTOWER, HECHT, CORNYN, ENOCH, SPECTOR and OWEN, Justices, join.

GAMMAGE, Justice.

In this invasion of privacy case, the issue is whether a newspaper may be held liable for disclosing private facts about a victim of sexual assault which made the victim identifiable by her acquaintances. The trial court rendered summary judgment in favor of The Star-Telegram and Tong without specifying the ground on which the judgment was based. The court of appeals reversed and remanded, holding there were genuine issues of material fact whether the information was lawfully obtained. 864 S.W.2d 790. We hold that under the specific facts presented, the information disclosed by the newspaper concerned matters of legitimate public concern. For this reason, we reverse the court of appeals' judgment and affirm the trial court's summary judgment that the victim take nothing.

I.

An assailant sexually assaulted and terrorized Jane Doe in her home in the darkness of the early morning hours. He also robbed Doe of money and personal possessions, including her Jaguar automobile. The assailant left Doe tied with strips of bed sheets, but she managed to free herself and call the police. Shortly thereafter, Doe gave a detailed statement to the police, and the police prepared a written report regarding the incident. Two days after the assault, the police apprehended a suspect who was driving Doe's Jaguar in Oklahoma.

After the assault, Betsy Tong, a "police beat" reporter for The Star-Telegram, Inc. d/b/a Fort Worth Star-Telegram, went to the Fort Worth Police Department in search of newsworthy events to report. While at the police station, Tong viewed an unredacted copy of the Doe police report. The report disclosed certain information about Doe including her age, her occupation as "owner" of a business, her business address, the make, model and color of her automobile, and a narrative description of the details of the offense, including the address where the offense occurred. Because the narrative makes clear that the offense occurred in Doe's home, the police report literally disclosed Doe's home address. Tong alleges that Sergeant Timmons, a Fort Worth police officer, told her about the assault on Doe and that someone from the Fort Worth Police Department provided her with a copy of the related police report. In an affidavit, Sergeant Timmons denied providing Tong with any identifying information about Doe. Sergeant Timmons stated that he repeatedly told Tong that it is against the procedure and practices of the Fort Worth Police Department to release any identifying information about the victim of a sexual assault. He further testified that he never violated the department policy against releasing such information, and to his knowledge no members of the police department violated this policy.

Tong wrote and The Star-Telegram published two newspaper articles which gave rise to this lawsuit. The first article, published the day after the police report, disclosed Doe's age, the relative location of her residence, that she owned a home security system, that she took medication and that she owned a 1984 black Jaguar automobile. The newspaper published a second article the following day, giving another detailed account of the sexual assault and disclosing the additional fact that Doe owned a travel agency. It is undisputed that the facts revealed in both articles were true. Although Tong did not reveal Doe's name, Doe contended the details in the articles allowed all those who knew her to readily identify her as the victim.

Doe sued The Star-Telegram and Tong (collectively, "Star-Telegram") for the public disclosure of private facts, for intentional and/or negligent infliction of emotional distress, and for negligence and negligent supervision. After a mandamus concerning a protective order was resolved by this Court, Star-Telegram v. Walker, 834 S.W.2d 54 (Tex.1992) (orig. proceeding), Star-Telegram moved for summary judgment on several grounds. Star-Telegram alleged that the matters publicized in the articles were of legitimate public concern. Star-Telegram also argued that it should prevail as a matter of law under the constitutional standard set forth in The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989), providing that "[i]f a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information absent a need to further a state interest of the highest order." Id. at 533, 109 S.Ct. at 2609. The trial court granted summary judgment without specifying the ground on which judgment was based.

The court of appeals reversed the trial court's judgment. The court held that the disposition of the case was directly controlled by Florida Star, and that a question of fact existed whether Star-Telegram lawfully obtained the information, making summary judgment improper. The court further held that the summary judgment was not supportable under Star-Telegram's other theory, that the articles chronicled matters of legitimate public concern. The court concluded that even if the articles contained matters of legitimate public concern, the publications were not protected if the information was unlawfully obtained.

II.

Star-Telegram asserts that it is entitled to summary judgment on a procedural ground. Because Doe did not assign error to each basis on which the newspaper moved for summary judgment, Star-Telegram argues Doe has waived the other grounds which are presumed to be valid. When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989). The appellate court must affirm the summary judgment if any one of the movant's theories has merit. Id. Star-Telegram contends Doe did not address its claim that the press should be insulated from civil liability whenever it publishes the truth. In challenging a summary judgment, it is sufficient that an appellant broadly assert the trial court erred in granting summary judgment. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). Under this point of error, the appellant may argue all the reasons the trial court erred in granting the summary judgment. Id. Doe argued before the court of appeals that even if Star-Telegram lawfully obtained information of legitimate public concern, the newspaper should still be held liable. This argument necessarily addresses Star-Telegram's claim that it is entitled to publish some facts with impunity simply because they are true. We conclude Doe appropriately attacked each ground for summary judgment asserted by Star-Telegram.

III.

The right to personal privacy was first articulated in 1890, in an article arguing that the "right to be let alone" is as much a part of personal liberty as the right to be free from physical restraint and the right to possess property. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV.L.REV. 193, 193 (1890). The concept has since been incorporated into a common-law tort in Texas and serves to protect individuals from invasion of privacy. Billings v. Atkinson, 489 S.W.2d 858, 859-60 (Tex.1973). Doe seeks to recover under the invasion of privacy tort for public disclosure of embarrassing private facts, which has three elements (1) publicity was given to matters concerning one's personal life, (2) publication would be highly offensive to a reasonable person of ordinary sensibilities, and (3) the matter publicized is not of legitimate public concern. Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977).

We review the evidence in a summary judgment case in the light most favorable to the nonmovant and accept all of the nonmovant's factual assertions as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985). Because Star-Telegram has moved for summary judgment, the newspaper has the burden of establishing by competent summary judgment proof that, as a matter of law, there is no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Star-Telegram attempted to disprove only the third element, whether the information publicized was not of legitimate public concern.

IV.

Generally, there is a presumption under Texas law that the public has no legitimate interest in private embarrassing facts about private citizens. Industrial Found., 540 S.W.2d at 685. The determination whether a given matter is one of legitimate public concern must be made in the factual context of each particular case, considering the nature of the information and the public's legitimate interest in its disclosure. Id. While the general subject matter of a publication may be a matter of legitimate public concern, it does not necessarily follow that all information given in the account is newsworthy. See Ross v. Midwest Communications, Inc., 870 F.2d 271, 274 (5th Cir.1989), cert. denied, 493 U.S. 935, 110 S.Ct. 326, 107 L.Ed.2d 316; Anonsen v. Donahue, 857 S.W.2d 700, 704 ...