The Volokh Conspiracy - Publishing Names of Accused Criminals Whom D.A. Declined to Prosecute = Actionable Invasion of Privacy?

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.

	[Eugene Volokh, August 14, 2009 at 6:32pm] Trackbacks Publishing Names of Accused Criminals Whom D.A. Declined to Prosecute = Actionable Invasion of Privacy? 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.