So holds a 2-1 panel decision of the Texas Court of Appeals in Freedom Communications, Inc. v. Coronado.
The case involved a political ad attacking an incumbent D.A. for "st[anding] against children who have been sexually abused, sexually assaulted, or physically injured, and st[anding] with those who would commit such heinous crimes." The ad included the names of plaintiffs as people accused of "sexual abuse of child" or "physical abuse of child," and noted that the disposition in the cases was "declined at intake."
The plaintiffs then sued both for defamation and for invasion of privacy (on a "public disclosure of private facts" theory). The court held that the defamation claim could go to trial, because in context, the ad suggested that defendants were indeed guilty, and not just that they had been accused. That might be sound (though the dissent disagreed), but in any case isn't my concern here.
But the trouble is that the court also held that the invasion of privacy claim could also go forward. This claim does not require proof of falsehood (this is a disclosure of private facts claim, not a false light invasion of privacy claim); and the court's rationale would apply equally to an accurate report:
In order to recover damages for this tort, the appellees must prove that: (1) publicity was given to matters concerning the appellees' private life [14]; (2) the matter publicized is not of legitimate public concern; and (3) the publication of those matters would be highly offensive to a reasonable person of ordinary sensibilities.
[Footnote 14:] The disclosure of facts that are a matter of public record will not give rise to a public disclosure invasion of privacy claim.
[Footnote 10 (moved):] [T]he appellees also note that the Case Disposition Report contained "strictly confidential, non-public information, which ... remains confidential when it is transmitted to the CCCAC" and are "not public records at all." However, the fair report privilege statute does not require that a government report be "public" in order for the privilege to apply. We need not determine whether the Case Disposition Report was in fact "strictly confidential" because it has no bearing on the issue of whether the fair report privilege applies.
Freedom argues that it conclusively negated all three of the essential elements of the appellees' invasion of privacy claim. First, it contends that it conclusively established that the information included in the advertisements was of "legitimate public concern" because it discussed "alleged criminal activity" in Cameron County. "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." Freedom notes that the Fifth Circuit has held that "there is a legitimate public interest in facts tending to support an allegation of criminal activity, even if the prosecutor does not intend to pursue a conviction." However, the advertisements at issue here did not disclose any underlying facts that would support an allegation of criminal activity against the appellees.
Rather, the advertisements stated only that such allegations were in fact made against the appellees and were subsequently reported to the District Attorney's office. While underlying facts reflecting criminal activity can certainly be of legitimate public interest, Freedom points to no authority, and we find none, holding that the public has a legitimate interest in the mere fact that an individual has been accused of a crime. [15] Absent such authority, we cannot say that the information contained in the advertisement was of "legitimate public concern" as a matter of law.
[Footnote 15:] In arguing that the subject matter of the advertisements was "of legitimate public concern," the dissent notes that "[p]rotection of children from abuse is of the utmost importance in Texas" (citations omitted). By suggesting that the Court's decision today is somehow at odds with the goal of "[p]rotect[ing] children from abuse," the dissent has ironically -- but unsurprisingly -- employed the same type of moralistic intimidation that Zavaletta used to tar his opponent as complicit in child abuse. Of course, this Court agrees with the general proposition that the protection of children from abuse is a supreme public policy objective of this state. However, the dissent does not explain how the publication of mere accusations of child abuse without any supporting evidence, as is the case here, serves to advance this cause. The dissent also fails to recognize that by classifying a mere accusation of child abuse as an item "of legitimate public concern," it is adopting the same misguided view that the dissent derisively attributes to "many individuals ... in our society" -- that is, it ignores "the ideal that an accused is innocent until proven guilty."
This strikes me as a very dangerous result, because it undermines the ability to report, even accurately, about accusations of crime. I've generally criticized the disclosure tort even as to other matters, but it strikes me as especially unsound here: One can't decide whether the prosecutor is operating properly in declining to prosecute cases if one must face ruinous liability for even mentioning the name of a person who is accused.
What's more, this result seems to me hard to reconcile with Florida Star v. B.J.F., which set aside a verdict for publishing the name of a sex crime victim. There, as here, a newspaper was sued for publishing names drawn from a government report. Even if the information in the Case Disposition Report was supposed to be kept confidential, in Florida Star the victim's name was also supposed to be kept confidential (a police officer released the name in violation of government policy).
But the Court correctly concluded, I think, 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." And no such need can be sufficiently shown when the "sensitive information is in the government's custody," where the government has considerable "power to forestall or mitigate the injury caused by [the] release [of the information]" by "classify[ing] certain information, establish[ing] and enforc[ing] procedures ensuring its redacted release, and extend[ing] a damages remedy against the government or its officials where the government's mishandling of sensitive information leads to its dissemination. Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts."
Such a less drastic means may be imperfect (mistakes do happen), but the Court concluded that the government must use that means, rather than punishment of disclosure. And if, as the Florida Star court held, the name of a crime victim may be published because it is sufficiently relevant to a matter of "public significance" -- even before a trial in which the fact of the crime has been officially proved -- then the same should be true as to the name of the alleged criminal.
I would start by noting important elements of this case:
1) The speech in question was an advertisement.
2) The question wasn't the endorsement by the newspaper.
3) The speech in question was part of a political campaign.
Unlike normal news stories we don't usually expect newspapers to vet all facts purported in advertisements. I would argue here that the newspaper really shouldn't be sued at all, but the political candidate should be instead.
Regardless of the legal questions in who should be sued and whether torts beyond defamation should apply, I find it deeply concerning that a candidate for District Attorney would engage in potentially libelous campaign advertisements.....
I agree -- it's entirely possible that the DA was being too lenient, but there's no evidence to back that up. The argument in the ad is that it's a prosecutors duty to try to get a conviction for every complaint. Making that argument seems like pretty good grounds for not becoming a DA.
Yes, particularly since a completely baseless anonymous telephone tip (sometimes well-meant, other times not) can inspire an invasive and hurtful child abuse investigation. As someone who has been wrongly accused, I can tell you that it is quite frightening for young children (under 5) to be interrogated by an armed police officer who threatens repeatedly, in front of them, that "we can take your kids away RIGHT now" if you don't comply with a warrant-less search of your residence. Publishing the names of innocent people would do even more damage.
Context matters, and in this case, much more than reporting accusations of crime is going on. Accusations of crime are being reported along with the claim that those accused should have been prosecuted, even saying, "As your District Attorney, my team and I will aggressively prosecute these cases and insist that the convicted be incarcerated."
It is one thing to point out that someone was accused but not charged. It is quite another thing to say the person should have been charged or that declining to charge them constitutes a "stand against children".
This is more like listing the name of a particular randomly-chosen person along with the line "is a potential rapist" and then defending it by saying "well, all men are potential rapists".
"David Schwartz is a potential rapist."
Sorry, cound't resist. Fortunately as you say, context matters.
Isn't the context important here? The advertisement wasn't reporting on the matter of public significance or discussing the facts surrounding the case. Once could scarcely say they are 'reporting' at all except in the most superficial sense.
That is precisely why we should have a double-sided Shield Law.
When an accusation of a sex crime is made BOTH the names of the victim &the accused should be confidential and only released when a guilty verdict has been reached.
It is far too easy to just sling a false claim of criminal sexual activity (either a cover-up, a plea bargain negotiation tactic, an accident, etc.). Such an accusation is very damaging even if the charge is dropped.
Take for example the story out of England involving a woman who, after having consensual sex, would blackmail the men or accuse them of rape. Notice the effect upon the accused.
Martha's story is, sadly, far too believable - look at the McMartin preschool case and other cases of satanic panic.
Because of the presumption of innocence, the Police and the Prosecutors can not publically name the accused in a criminal case, except under rare circumstances.
They can say an arrest has been made, they have suspects, but unless the person is a fugitive, they can't name them.
Imagine what the OJ case would have been like if the Public didn't know who the accused was until the trial started, it would have removed a lot of the circus atmosphere.
It would require some redoing of some public records laws in this country. Arrest records and mug shots have been considered public records that we can freely access that it would be a real struggle for some segments of our society to accept.
I for one would really miss The Smoking Guns weekly mugshot roundup.
A publisher lends credibility to what it publishes. If I say you're a jerk, nobody cares, it's just me. But if the New York Times publishes me saying you're a jerk, well then it must be news and it must be important. More importantly, publishers have time to fact check and can reasonably be expected to do so. (In most circumstances. I think fact checking an advertisement is over the line. If not, there'd be no late night ads for diet pills or "male enhancement".)
In contrast, Internet sites rarely add any credibility to reports they "publish". And it would be effectively impossible for them to review content or fact check it before publishing it. (Imagine if this site had to do that.)
You can argue the lines are drawn wrong on both sides. But the distinction is not unreasonable.
Presumably if Nazi thugs murder political opponents and the prosecutor winks at it, as happened in Germany, this ruling would stifle public criticism of the murders.
The thing about it in the case of an accurate report is that it is like a SLAP, or is it SLAPP, suit, intended to shut somebody up through legal threat and expenses.
I ask: if the private facts are accurate, namely the person is a molester who was not charged, is there any requirement in the public disclosure/private facts suit where either the private facts must be admitted as true or contested?
Obviously if there is a defamation claim also made, the truth of the facts becomes an issue.
There was a suggestion made that any officer with some number of "CR"s (valid or not) be automatically suspended from duty. It was pointed out in response that it's not difficult to generate a CR with no grounds; and a criminal group, such as a street gang, could easily gin up a sheaf of CRs against an officer they disliked, Furthermore there is no real cost to filing a CR; even when it was proven that the complainant lied under oath, the State's Attorney filed no charged.
OTOH, some officers do generate a lot of smoke, and there could be fires.
My instinct is to say that where nothing is proven, nothing should be insinuated. The false positive rate of arrests is substantial (as it should be). As EV notes, though, how then does one address the issue of prosecutorial malfeasance? Perhaps by referring to the case with no names given...
Isn't it amazing -- bad officers hiding in a cloud of smoke ginned up by criminal thugs. You'd almost think they were put here to help each other ...
An uncharacteristically shallow analysis of competing legitimate interests. One reason prosecutors decline at intake is that they are lazy, but another is that the case lacks probable cause. In the later case it is definitely no innovation in tort law to hold that publishing the details and alleging guilt is actionable.
I can't figure out how to post the link - do a quick Google search for "District Attorney Armando Villalobos".
This raises(in my view)a more interesting legal issue - are there due process concerns when a prosecutor has such a direct stake in the underlying criminal act? The Texas intermediate appellate court just denied a pretrial attempt to throw him off the case.
After all the Obama admistartion decided to drop all charges. Its not a perfect comparison since at first prosecuters did charge them until the administaration intervened, but its not that different.
That's not a consequence of the Court's decision though. The Court's rationale for concluding that the advertisement was not of legitimate public concern is that the advertisement did not include facts tending to support an allegation of criminal activity. As you quoted the Court above:
Consideration of whether a prosecutor is appropriately declining to prosecute requires knowledge of at least some pertinent facts regarding the circumstances leading to arrest. A name alone does not help us at all in that respect. And disclosure of only the name is all that that the Court finds subject to suit.
After reading the opinion, I think it is actually reasonable given that First Amendment interests were not discussed in any direct way.
However..... There are some special facts here which suggest to my mind possible claims against the newspaper. First, they DID do fact-checking and the advertising agency sent them case disposition reports on these cases (page 6 of decision). In short the newspaper knew or should have known these statements were questionable and quite damaging to the plaintiffs.
As to the public interest, the court had this to say.
Personally, I find it very much in the public interest to know what candidates for an office think about issues, no matter how offensive. I think the speech in question here, being for a political campaign, is of particular value. However these matters were not raised by the parties and not discussed. In essence no substantial first amendment interests were discussed in the opinion which suggests nobody raised them in brief or argument.
One important thing here is that the issue here is publishing an allegation WITHOUT supplying any additional background is what is at issue in this case. This is hence not about reporting on crime or anything other than making accusations against third-party individuals as part of a political campaign.
Having said that sexual assult charges carry tremendous baggage. False reports need to be prosecuted and punished. Now those false accusers tend to be let off with little or no repercussions.
Out of 750 sex crime allegations that TYC investigated internally, TYC was "...able to substantiate only 88 of them"
The TYC crud implicates every level of the Texas system, including the top political appointees under Perry's watch. Libel law has served us well for centuries, and some measure of truth can be gleaned from the failure to prosecute libel:
My biases include that I've been falsely accused of a crime against a child, was tortured in jail, was defamed by the media coverage, which of course didn't mention when charges were later dropped. Still, I think the paper,and even the candidate, are not liable here. Can the paper interplead the candidate as the real party in action; does a paper have a right of action against an advertiser who might have violated someone's right to privacy? Paper at least should write such a clause into its ad contract if it hasn't.
Can the paper countersue for infringing on its free speech rights?
Will there be an interlocutory appeal of this ruling, or does it go to trial now?
Without being able to discuss how to label conduct of this sort, people cannot discuss the very public question of what ought to be the correct definition of murder and other crimes in the state and what sort of conduct ought to be regarded as criminal. If people are not free to characterize certain conduct as criminal, they are handicapped in arguing that that conduct should be made a legal crime.
That said, the communication involved may well be libelous and if so could be constitutionally sanctioned on that ground. Further, the tort would appear to have many other legitimately constitutional uses. The tort may be capable of a saving narrowing construction.
how can disseminating what is publically available information be an invasion of PRIVACY.
what privacy rights does one have towards public info?
for example, i can go down to any local district court in my county and look up your name. i can find out if you have any arrests or citations (criminal or civil) or if you have been charged/arraigned, etc on any sort of criminal or civil case. that's PUBLIC record. i am not talking about using my police resources (which gives additional information such as addresses, etc.) but stuff that is publically available to any citizen merely upon walking the courthouse and using the computer. heck, you can even set up your own account (but it comes w/ a fee) to do so from your home computer.
can somebody clarify this for me? is there some way that disseminating this publically could be an invasion of privacy?
it just seems oxymoronic to me.
In fact I think that in the 1940s, both the Communist Party and the Mafia used to use libel laws to attempt to shut people up. This was well before New York Times v Sullivan.
Apparently an employee at the DA's office forwarded confidential information to an opponent running for office, so it isn't clear to me that this was public information. If it was, I don't think the same standard would apply.
I am really pissed off about your deleting my comments and blocking my IP addresses. The reason why you are doing this is that I complained about David Bernstein hijacking this blog -- a lawblog -- to post numerous political articles about the Israeli-Palestinian conflict. That complaint hardly justifies your censorial actions against me.
I consider Volokh Conspiracy to be a governmental or semi-governmental blog because (1) you identify yourself on this blog as a professor at a public university and (2) I presume that you spend time running this blog out of your office there. As a blogger on such a blog, I feel that your obligation to refrain from arbitrary censorship of comments and commenters is much greater than that of a completely private blogger. Also, this blog is frequently cited by law journals and has been cited by court opinions, meaning that you have an even greater obligation to refrain from arbitrary censorship. If you continue to persecute me, I intend to complain to your university department and take whatever other actions may be necessary.
I am reposting below the comment that you rudely deleted here:
A related issue is the police practice of requesting that newspapers publish the names of prostitutes and/or prostitutes' customers (while not asking for the publication of the names of some really serious criminals). An article said,
That article and this article name newspapers that have refused the requests. Good for those newspapers -- and shame on the newspapers that have complied.
Another problem is that different people often share the same name.
Requests by a government agency -- e.g. a police department -- that a newspaper publish something controversial (an example of something non-controversial would be an announcement of a public meeting) puts the newspaper on the spot -- the newspaper is damned if it does and damned if it doesn't. Requests by police that newspapers publish the names of hookers and/or johns is an abuse of government power and a violation of freedom of the press. The newspapers should sue the police for even just asking.
An interesting article in the Boston Globe says,
So if you are a john of modest means then you get your name published in a newspaper, but if you are a rich john who can afford to pay bigtime hush money to a hooker then you get a judge to protect your identity.
Many continental European countries have such rules, usually not as a matter of law, but one of courtesy, journalistic code of conduct, etc. Those who are accused of a crime are not named, except as "Eugene V.". In many countries, even those conviced are named in this way, on the theory that the actual name of the criminal is not pertinent to the story, and therefore the interest of free reporting does not justify invading the criminal's privacy.
European countries are much more protective of privacy than the USA. For example, blocking IP addresses on the Internet -- a common practice in the USA -- is illegal or frowned upon in Europe because the Europeans consider IP addresses to be private personal information (actually, if a California law is properly interpreted, IP-address blocking is illegal there, too).
1) There is likely to be no other way to cross-reference this story with other crimes committed by the same person or other reports of this same crime.
2) Stories about criminals also serve a warning purpose, and being warned about a "Steve N." won't help you avoid him if he's your child's teacher or new employee.
Court records? What exactly are you imagining a reader of the newspaper might do? Google the criminal's name to see what else they did? If this information is interesting, one would expect the article to mention it, and if it doesn't, a reader would normally leave it at that, wouldn't they?
They very much do not serve this purpose. Dutch law combines a relatively relaxed (by US standards) system of penalties with a very flexible system for the continued detention of people who continue to be dangerous. Criminals who are released from prison, which would normally be some time after the newspapers originally reported on their conviction, are entitled to resume their position as ordinary members of society. (To the extent that this does not apply to pedophiles and such, that's what the sex offenders' registry is for.)
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