Taylor v. K. T. V. B., Inc.

• Citation: 525 P.2d 984,96 Idaho 202
• Decision Date: 29 July 1974
• Docket Number: No. 11345,11345
• Parties: Oren TAYLOR, Plaintiff-Respondent, v. K. T. V. B., INC., and Idaho corporation, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 984

525 P.2d 984

96 Idaho 202

Oren TAYLOR, Plaintiff-Respondent, v. K. T. V. B., INC., and Idaho corporation, Defendant-Appellant.

No. 11345.

Supreme Court of Idaho.

July 29, 1974.

Rehearing Denied Sept. 6, 1974.

Hawley, Troxell, Ennis & Hawley, John T. Hawley, Boise, for defendant-appellant.

Webb, Johnson, Tway, Redford & Greener, Boise, for plaintiff-respondent.

BAKES, Justice.

Defendant-appellant KTVB operates a television station in Boise, Idaho, with a broadcast range throughout the Boise Valley area. On the evening of March 11, 1972, in a regular news broadcast, a segment of film was aired showing the arrest of plaintiff-respondent Oren Taylor on the previous evening by a force from the Ada County Sheriff's Office and the Garden City Police Department. At the time that Taylor was arrested and taken from his home he was in the nude. During the telecast of his arrest, Taylor's buttocks and genitals were visible to television viewers for a time period of approximately eight-to nine-tenths of one second. Taylor brought this action for invasion of privacy against KTVB. After a trial, the jury returned a verdict for Taylor in the sum of $15,000 and judgment was entered on the verdict. KTVB appeals from that judgment. We reverse the judgment and remand for a new trial.

The arrest had taken place after nightfall on the day of March 10, 1972. Earlier in the evening, Taylor had threatened his housekeeper's sister with a shotgun and told her to get away from his residence. This threat prompted a complaint to law enforcement authorities. A Garden City policeman was dispatched to Taylor's house. The officer was also threatened with the shotgun, and he called for reinforcements. The call was heard by KTVB employees monitoring the police frequencies, and a cameraman was dispatched to cover the story. When reinforcements arrived to aid in Taylor's arrest, the cameraman was also among those gathering. KTVB's cameraman photographed the scene of the arrests as it happened, not realizing that Taylor was nude until Taylor was brought more clearly into view. The cameraman stopped filming when he saw that the person taken into custody was wearing no clothing. Nevertheless, the portion of the film that showed a brief glimpse of Taylor in the nude was aired the following evening along with the rest of the film depicting the arrest.

Taylor testified that he had been ill on the day of his arrest and had spent much of the day lying down and resting. Since he customarily slept in the nude, he had also been resting in the nude, covering himself with a blanket as he lay on his living room davenport. He had not clothed himself when he threatened his housekeeper's sister or the police officer, and he was still nude when the sheriff ordered him out of the house and placed him under arrest.

The issue in this case is whether or not the television media are entitled, without being liable for invasion of privacy, to telecast the arrest of a person in a manner that publicizes embarrassing private facts about the arrest, the disclosure of which would be found offensive and objectionable by reasonable persons. KTVB contends that there is an absolute privilege to report truthfully all details of an event of current public interest without incurring liability for invasion of privacy. Taylor, on the other hand, argues that by his involvement in an arrest he had not forfeited his right to privacy.

Invasion of privacy was adopted as a tort in the state of Idaho in the case of Peterson v. Idaho First National Bank, 83 Idaho 578, 367 P.2d 284 (1961). In that case, the four categories of invasion of privacy enumerated by Professor Prosser in his article, Privacy, 48 Cal.L.R., were set forth as follows:

"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 and likeness." 83 Idaho at 583, 367 P.2d at 287.

The second of these categories, i. e., public disclosure of embarrassing private facts, is the particular form of invasion of privacy involved in this case.

The main thrust of appellant KTVB's assignments of error relates to those instructions to the jury relating to the privilege accorded to the news media in televising current affairs on its news programs, such as the action of the law enforcement officers in arresting Taylor. KTVB challenges the standards which were applied by the trial court in instructing the jury regarding the justification of telecasting embarrassing private facts about the plaintiff in the course of filming the arrest scene. KTVB particularly objects to the court's instructions numbers 13, 14, 15 and 16. Those instructions generally proceeded upon the legal theory that the public interest in a legitimate news broadcast about public or newsworthy personages or incidents would not justify a lurid or indecent treatment of the facts such as would outrage the community's notion of decency. The court instructed the jury that the truth of the portrayal and the motives of the broadcaster were unimportant and not a matter of defense. KTVB further assigns as error the failure of the trial court to instruct the jury that the defendant would only be liable for invasion of privacy if the event published was not newsworthy, and the publication had been made with either actual knowledge that the incident would be highly offensive to a person of ordinary sensibilities, or with reckless disregard of whether it would be offensive to a person of ordinary sensibilities. For reasons hereinafter set forth, we conclude that the standards for liability contained in the trial court's insturctions were erroneous, and that the appellant KTVB is entitled to a new trial.

This conclusion is dictated both by our analysis of the common law doctrine of invasion of privacy, and by the protection afforded to the news media by the First Amendment of the United States Constitution as interpreted by the United States Supreme Court.

The authorities writing in the area of invasion of privacy have all assumed and concluded that reports of governmental action in criminal matters are the legitimate province of a free press. Warren & Brandeis, The Right of Privacy, 4 Harvard L.R. 193 (1890); Prosser, Privacy, 48 Cal.L.Rev. 385 (1960), cited with approval in Peterson v. Idaho First National Bank, supra.

Professor Prosser in his fourth edition of the Law of Torts (1971), has restated his earlier views:

'The privilege of giving publicity to news and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. 'News' includes all events and items of information which are out of the ordinary humdrum routine, and which have 'that definable quality of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definition of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and other crimes, arrests and police raids, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine if more or less deplorable popular appeal.

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'Caught up and entangled in this web of news and public interest were a great many people who had not sought publicity, but indeed, as in the case of any accused criminal, had tried assiduously to avoid it. They had nevertheless lost some part of their right of privacy. The misfortunes of the frantic victim of sexual assault, the woman whose husband was murdered before her eyes, or the innocent bystander who was caught in a raid on a cigar store and mistaken by the police for the proprietor, could be broadcast to the world, and they had no remedy. Such individuals became public figures for a season; and 'until they have reverted to the lawful and unexciting life led by the great bulk of the community they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains, and victims.' The privilege extended even to identification and some reasonable depiction of the individual's family, although there must certainly be some limits as to their own private lives into which the publisher could not go.' Prosser, Law of Torts, 4th Ed., 1971, at pp. 824-826.

The Restatement of Torts takes the position that persons charged with crimes 'are the objects of legitimate public interest during a period of time after their conduct . . . has brought them to the public attention; until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.' (Restatement of Torts, § 867, Comment c). The right of the public to receive, and the right of the news media to disseminate information concerning those charged with crimes is unquestioned. As stated by the Supreme Court of California in Briscoe v. Reader's Digest Association, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971):

'There can be no doubt that reports of current criminal activities are the legitimate province of a free press. The...