Travers v. Paton

• Citation: 261 F. Supp. 110
• Decision Date: 25 November 1966
• Docket Number: Civ. No. 10911.
• Court: U.S. District Court — District of Connecticut
• Parties: Harold TRAVERS v. John W. PATON, Dr. Sedrick J. Rawlins, Abraham S. Bordon, Charles Stroh, Francis T. Ahearn, Stephen K. Elliott, Rt. Rev. Msgr. Joseph M. Griffin, Boce W. Barlow, Jr., E. Clayton Gengras, Thomas A. Grasso, Frederick G. Reincke, Broadcast-Plaza, Inc.

261 F. Supp. 110

Harold TRAVERS v. John W. PATON, Dr. Sedrick J. Rawlins, Abraham S. Bordon, Charles Stroh, Francis T. Ahearn, Stephen K. Elliott, Rt. Rev. Msgr. Joseph M. Griffin, Boce W. Barlow, Jr., E. Clayton Gengras, Thomas A. Grasso, Frederick G. Reincke, Broadcast-Plaza, Inc.

Civ. No. 10911.

United States District Court D. Connecticut.

November 25, 1966.

Louis RisCassi, Hartford, Conn., for plaintiff.

Harold M. Mulvey, Atty. Gen., Raymond J. Cannon, Asst. Atty. Gen., Arthur L. Shipman, Jr., Robert Ewing, Hartford, Conn., for defendants.

RULING ON MOTION FOR SUMMARY JUDGMENT

BLUMENFELD, District Judge.

The plaintiff Harold Travers brought this suit under 42 U.S.C. §§ 1983 and 1985(3) seeking damages for the alleged violation of his civil rights. The claim arises out of a television documentary prepared by the defendant Broadcast-Plaza, Inc. The film was later televised over the defendant Broadcast-Plaza's TV station. The other defendants are the individual members of the Connecticut Parole Board, the members of the Prison Board of Directors, and the warden. Jurisdiction is founded on 28 U.S.C. § 1343.

The facts are not in dispute. The defendant Broadcast-Plaza, Inc. operates WTIC-Channel 3, a television station in Hartford and broadcasts to the surrounding area. As part of its programming, it has presented a documentary series entitled "Connecticut — What's Ahead" describing matters of public interest in the community. On April 22, 1964, the corporate defendant caused to be televised a film entitled "Prison and Parole" describing the facilities and life of an inmate in the new state prison at Somers, Connecticut.

The instant television program had been filmed at the Somers prison during the months of February and March 1964. Almost all areas of the prison were photographed by members of a camera crew who ate their meals in the prison dining room and worked often in full view of the inmates. A portion of the film was concerned with the operation of Connecticut's parole system and included scenes of prisoners being interrogated as prospective or recalcitrant parolees. The plaintiff, an inmate of the prison, was filmed as he appeared for a parole hearing.

Mr. George W. Bowe, Manager of Special Radio and Television Programs for WTIC-TV and producer of the instant program described the manner of filming the parole hearing sequence to which the plaintiff objects:

"The camera was placed in a room adjacent to the hearing room, which was then utilized as an office by prison guards. This room was connected by a door with a small glass panel in the upper half, and the filming was through this panel. The small window was covered whenever inmates entered or left the room so as to conceal the camera. There were no lights or other photographic equipment in the hearing room itself, nor any other cables, wires or similar distracting objects." (Affidavit, p. 3).

The corporate defendant asserts that Travers was not disturbed in his parole interview by the filming, but was rather unaware of the entire operation. Plaintiff does not dispute this point, but argues that the very secrecy of the filming operation made public what plaintiff was led to believe was a confidential interview. The act of the corporate defendant in filming plaintiff's interview in this allegedly deceptive fashion and in subsequently televising this film is what the plaintiff claims invaded his constitutional right to privacy in violation of 42 U.S.C. §§ 1983, 1985(3).

The defendants have moved for summary judgment, advancing a host of arguments.

The question presented is whether the foregoing facts will support a claim under 42 U.S.C. § 1983. This presents "a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy." Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946).

Title 42 U.S.C. § 1983 imposes civil liability for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States * * *."

All torts are not violations of rights "secured by the Constitution and laws." The statute encompasses a much narrower field. This much is clear enough. For the statute to apply, there must be a combination of two ingredients. The tort must be an act in violation of the Constitution or a federal law,¹ and the tort-feasor must have acted under color of law. But if it matters that the act be under color of law, it matters even more what law is violated. Here, the objective of the statute is to permit in federal courts only cases which have valid justification for being litigated in the federal system. As pointed out by Mr. Justice Douglas in Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1961):

"It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies."

Since no "laws" of the United States are involved, the plaintiff's case rests solely on the proposition that the Constitution contains a so-called "right of privacy."² This contention begins and ends with Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), for there is no other case support for the argument.³ In Griswold, the Court was faced with a constitutional attack on Connecticut's antiquated criminal statute barring the use of contraceptive devices. Conn.Gen.Stats. § 53-32. Although recognizing that the Constitution nowhere explicitly mentioned a right of privacy, the Court enunciated a theory of "penumbras" of guaranteed rights whereby the first, third, fourth, and fifth amendment rights were seen to focus on and protect the sanctity of sexual aspects of the marital relationship. The several opinions written are a studied effort to avoid the introduction into the Constitution of a mass of unwritten rights, and they emphasize and re-emphasize that it is the special nature of the marriage bond that makes so patently offensive state intrusion into the area.

"We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." (Griswold v. Connecticut, supra, 381 U.S. at 486, 85 S.Ct. at 1682) (Emphasis added)

"The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected." (Griswold v. Connecticut, supra, 381 U.S. at 495, 85 S.Ct. at 1688) (concurring opinion of Justice Goldberg).

It misses the heart and spirit of the Griswold case to casually infer an intent to adopt into the Constitution the entire body of the tort law right to privacy.

Privacy, however, is an amorphous concept. Basic core aspects of privacy are secured to citizens by the fourth amendment to the Constitution.⁴ Indeed, the fourth amendment provisions have been held applicable to the states by the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). But this is privacy in a fundamental and simplistic sense—the right to be secure in one's home against violent and uncivilized intrusions by the police, ibid, the right to be protected against official assaults on the privacy of one's person by "methods too close to the rack and the screw."⁵ Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

The outer limit of constitutional protection against deprivation of rights which may be within the broadest definition of "privacy" has not been sharply defined. Thus far, only the basic core elements of privacy as found in Mapp and Rochin are clearly constitutionally protected.⁶ Protection does not extend to all possible ramifications of privacy. Wiretapping curtails one's privacy, but has not so far been counted as a violation of the fourth or fourteenth amendments.⁷ Indeed, special legislation was passed to bar a practice Congress thought to be socially undesirable.⁸

The plaintiff argues that defendants' conduct in photographing him and televising his image invades his "privacy." But use of the word in this context has an entirely different heritage from the constitutionally protected right of that name. Photographic privacy was first brought to the attention of the legal profession by an article in the Harvard Law Review in 1890 by Warren and Brandeis.⁹ They called this right the "right to be let alone." Previous English cases had dealt with the problem of unauthorized circulation of royal portraitures, et al., for commercial exploitation.¹⁰ These decisions had been based on a theory of breach of contract or breach of confidence. Warren and Brandeis claimed to find in the wellspring of the common law a new right—the right to be let alone— sounding in tort and giving rise to a cause of action in its own name.

The State of Connecticut follows the Warren-Brandeis rationale and recognizes a common law right of action for the invasion of privacy. Korn v. Rennison, 21 Conn.Supp. 400, 156 A.2d 476 (1959); Steding v. Battistoni, 3 Conn. Cir. 76, 208 A.2d 559 (1964). Cf. Carey v. Statewide Fin. Co., 3 Conn. Cir. 716, 223 A.2d 405 (1966). In New York, however, the right is purely statutory and severely limited in scope.¹¹ Since photographic privacy is protected in Connecticut by state common law, in a diversity case a federal court sitting in this state would follow state law and grant suitable relief. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (19...