Hall v. Post

Citations: 372 S.E.2d 711; 323 N.C. 259; 15 Media L. Rep. (BNA) 2329; 1988 N.C. LEXIS 611Docket: 340PA87

Court: Supreme Court of North Carolina; October 6, 1988; North Carolina; State Supreme Court

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The Supreme Court of North Carolina addressed the issue of whether tort claims for invasion of privacy based on truthful public disclosures of private facts are legally recognized in the state. The court determined that such claims are not cognizable at law, reversing the previous decision of the Court of Appeals. The case involved plaintiffs Susie Hall and her adoptive mother, Mary Hall, who filed separate civil actions against Rose Post and The Post Publishing Company, Inc. following the publication of two articles in The Salisbury Post. The defendants contended that the plaintiffs' complaints did not present a valid legal claim and sought summary judgment, which was granted by the trial court on May 20, 1986. The Court of Appeals later reversed this judgment, leading the defendants to seek discretionary review from the Supreme Court. The articles in question detailed a search for Aledith Gottschalk's daughter, whom she had abandoned 17 years earlier, providing a narrative of Aledith's life and circumstances surrounding the abandonment.

Clarence Maxson arranged for babysitter Mary Hall to care for his child for several weeks in 1967 while he and Aledith moved with the carnival. Later, Maxson informed Aledith he had signed adoption papers for the child. In 1984, Aledith, married to Lee Gottschalk, sought to find her child in Rowan County. A newspaper article on July 18, 1984, detailed their unsuccessful search and provided contact information for anyone with information about a "little blonde baby" left after the county fair in September 1967. Following the article, the Gottschalks were contacted and learned the child’s identity, leading to a second article on July 20, 1984, which identified the child as Susie Hall, adopted by Mary Hall, detailing a phone call between the Gottschalks and Mrs. Hall and the emotional impact on both families.

The plaintiffs claimed they had to leave their home to avoid publicity and sought psychiatric care for the emotional distress caused by the articles. The defendants argued that imposing civil liability for their truthful disclosures would violate the First Amendment and contended that the court should not adopt a tort for such conduct in state common law. While the plaintiffs asserted claims for public disclosure of embarrassing private facts and intrusion into their private affairs, the court agreed with the Court of Appeals that only the public disclosure aspect was relevant in this case, excluding any discussion of intrusion claims. The court acknowledged the historical context of privacy law, referencing the seminal article by Louis D. Brandeis and Samuel D. Warren, noting the evolution of First Amendment protections in relation to state law over time.

A concurring opinion by Justice Brandeis in Whitney v. California recognized the doctrine of First Amendment incorporation and contributed to his reputation as a constitutional scholar. Since the publication of Warren and Brandeis's article in the Harvard Law Review in the 19th century, two categories of privacy rights have developed: the constitutional right of privacy, which protects individuals from governmental intrusion (illustrated in cases like Nixon v. Administrator of Gen. Servs. and Roe v. Wade), and the general right of privacy, which gives rise to tort claims based on four types of invasions: appropriation of name or likeness, intrusion into seclusion, public disclosure of private facts, and placing someone in a false light. The current case focuses on the tort of "public disclosure of private facts." Plaintiffs concede the published facts were true but argue for recovery based on the Restatement (Second) of Torts definition, which requires that the publicized matter be 1) publicized, 2) private facts, 3) offensive, and 4) of no legitimate public concern. The determination of what constitutes legitimate public interest considers community customs and standards, distinguishing between informative publicity and intrusive prying into private lives. Additionally, North Carolina's common law, which has been in effect since its independence in 1776, did not recognize the private facts tort at that time or during the adoption of the Constitution or Bill of Rights.

The excerpt outlines the historical context and current state of privacy tort law in jurisdictions influenced by English common law, particularly focusing on the United States. It notes that the invasion of privacy tort is not recognized in several countries, including England and Canada, primarily due to concerns about its practical application and the potential threat to free speech. A British Committee on Privacy recommended against adopting such a tort in Great Britain for similar reasons.

In North Carolina, while the court has acknowledged a general right to privacy within tort law, it has not recognized two specific branches of this tort related to publicity that could conflict with First Amendment rights. Notably, the court rejected the "false light" claims due to their overlap with existing claims and the additional tension they would create between privacy rights and free speech. Similarly, the court asserts that claims based on the publication of true but private facts are not legally cognizable in the state, aligning with the U.S. Supreme Court's reluctance to address the liability for truthful publications concerning privacy.

The excerpt emphasizes that the situation at hand involves non-governmental parties and is not a matter of balancing constitutional interests, as the privacy claim does not constitute a constitutionally protected right. It concludes that the First Amendment rights of speech and press may prevent recovery for publishing truthful information. Additionally, it references the Supreme Court's consistent stance that even harmful falsehoods must be afforded some protection under free speech principles, underscoring the limited scope for privacy claims in the context of truthful publications.

Limiting the rights of free speech and press could lead to self-censorship among writers and speakers due to fear of liability, ultimately diminishing public debate. Legal precedents, such as *Hustler Magazine v. Falwell* and *Time, Inc. v. Hill*, suggest that true statements should receive constitutional protection equivalent to false statements, especially in defamation cases and other torts arising from speech or writing. The Supreme Court has established that the First Amendment imposes restrictions on state libel and slander claims, as seen in *New York Times Co. v. Sullivan* and further extended in *Time, Inc. v. Hill* regarding false light invasion of privacy. The constitutional privilege for invasion of privacy claims is applicable primarily to public disclosure of embarrassing private facts and false light invasions, whereas other forms of privacy claims may not be afforded the same protections. The court notes the potential constitutional conflicts arising from the tort of public disclosure of private facts, as it directly confronts First Amendment rights and risks duplicating other torts, such as intentional infliction of emotional distress, as highlighted in *Renwick v. News and Observer*.

In North Carolina, the tort of intentional infliction of emotional distress requires proof of (1) extreme and outrageous conduct, (2) intended to and actually causing (3) severe emotional distress. This tort can also apply when the defendant acts with reckless indifference to the potential for causing such distress. Victims can recover for the emotional distress and any bodily harm resulting from it. It is rare for a jury to find a defendant liable for the private facts tort without also finding liability for intentional infliction of emotional distress, as the findings required for the private facts tort—publicizing private matters that are not of legitimate public concern and would be highly offensive—often overlap with the criteria for emotional distress. Consequently, if a juror concludes that the private facts tort has been committed, it is likely they will also find the conduct extreme and outrageous, thereby establishing the emotional distress claim.

Additionally, for recovery under the private facts tort, a plaintiff must demonstrate three elements not required for emotional distress: (1) publication, (2) of private facts, and (3) that are not newsworthy or of public interest. Therefore, it is generally easier for a plaintiff to claim intentional infliction of emotional distress than to pursue the private facts tort. The potential recognition of the private facts tort offers little practical value, as it does not provide a distinct recovery opportunity, and concerns regarding its constitutionality, highlighted by various Supreme Court cases and scholarly works, suggest that it may exacerbate conflicts between the First Amendment and tort law. Thus, the court expresses reluctance to adopt the private facts tort, given the implications for freedom of speech.

The excerpt addresses the constitutional implications of the private facts branch of the invasion of privacy tort, concluding that it rarely offers plaintiffs advantages beyond those provided by the tort of intentional infliction of emotional distress and potentially other torts. The court emphasizes that it does not address the broader question of the constitutionality of other torts in similar cases. It finds that the benefits to plaintiffs do not warrant the adoption of a tort that penalizes the truthful public disclosure of information, ultimately rejecting claims for invasion of privacy based on the public disclosure of true but private facts. Consequently, the decision of the Court of Appeals is reversed.

Justice Frye concurs with the result of the majority but disagrees with the reasoning that entirely dismisses claims for invasion of privacy based on the public disclosure of true private facts. Frye argues that while public figures may lose some privacy rights, the media should not have unchecked freedom to publish highly offensive private details about ordinary citizens without accountability. He acknowledges the Court of Appeals' view that such a tort exists but believes the published information was of legitimate public concern, justifying the reversal of the appellate decision. The excerpt also notes the historical context of the invasion of privacy tort's development in North Carolina, tracing its recognition to a 1938 case involving unauthorized use of a photograph.

The Court has declined to recognize the tort of "false light" invasion of privacy, as established in Renwick v. News and Observer, citing concerns that it may duplicate existing libel or slander claims and exacerbate tensions between First Amendment rights and tort law. The Court has not yet addressed whether North Carolina would recognize the torts of unreasonable intrusion or unreasonable publicity of private facts. Although the plaintiffs claimed their case involved these torts, the Court aligned with the Court of Appeals in determining that unreasonable intrusion was not applicable. 

Liability for unreasonable publication of private facts arises under specific criteria outlined in the Restatement of Torts, which includes: 1) publicity; 2) private facts; 3) offensiveness; and 4) lack of legitimate public concern. Publicity requires that the private fact is shared widely enough to be considered public knowledge, while private facts must not already be in the public domain. Simply sharing facts with close family or friends does not make them public. The published fact must be highly offensive to a reasonable person. Furthermore, even if a fact is offensive, if it is of legitimate public concern, the publisher may not incur liability. Examples include the public's right to know about a death due to drug overdose, which courts have deemed newsworthy.

The private facts tort involves a legal conflict between the freedom of the press, protected by the First Amendment, and an individual's right to privacy. Courts have historically grappled with this tension, exemplified in cases such as Cox Broadcasting Corp. v. Cohn and Gilbert v. Medical Economics Co. The First Amendment promotes open discourse on public issues, emphasizing the importance of the free exchange of ideas, as established in Hustler Magazine v. Falwell and Bose Corp. v. Consumers Union. Conversely, the tort aims to safeguard an individual's control over personal information, as noted in Rawlins v. Hutchinson Publishing Co. 

Both rights—freedom of the press and the right to privacy—are not absolute. In defamation law, the Supreme Court has indicated that false statements do not contribute to societal discourse. Additionally, when a private fact is of public concern, the public's right to know may supersede an individual's privacy, as seen in Beresky v. Teschner. The Supreme Court has not definitively ruled on the constitutionality of publishing very private matters unrelated to public affairs. 

The resolution of these competing rights may hinge on a "newsworthiness" or "public interest" standard, as supported by Hall v. Post. This standard acknowledges the limitations on both privacy rights and press freedoms. Concerns about the tort's potential chilling effect on press freedom have been raised by various courts and commentators, highlighting the delicate balance between privacy and the public's right to know.

Freedom to publish matters of legitimate public concern is constitutionally protected at both federal and state levels. The trial court determines if published material qualifies as being of legitimate public concern, helping to alleviate concerns that juries may unduly censor journalists. If the court finds that a reasonable person would deem the publication as having public concern, the publication is privileged, and summary judgment is appropriate.

The standard for assessing public concern is drawn from the Restatement (Second) of Torts, which differentiates between public interest and intrusive, sensational prying into private lives. If it is determined that no reasonable juror could conclude that the publication was morbid or sensational, there would be no cause for action as a matter of law.

The private facts tort includes three key elements: 

1. **Publicity**: The Court of Appeals presumes publicity is satisfied once something is published in a newspaper.
2. **Offensiveness**: Whether a publication is highly offensive is generally a jury question, and summary judgment on this issue was deemed inappropriate since a jury could reasonably find the publication distressing to the individuals involved.
3. **Private Facts**: Liability does not arise from the further publicity of facts already public, and a fact may still be considered private even if shared with close family or friends. The Court of Appeals concluded that the trial judge erred in granting summary judgment, as there was sufficient evidence to suggest that the plaintiffs' story might still be private prior to the contested publications.

The Court of Appeals determined that there is a factual dispute regarding whether the information about the plaintiffs was public or private before the publication of the contested articles. As a result, defendants cannot claim summary judgment based on the assertion that the facts were public. The standard for assessing public interest, as outlined in the Restatement, emphasizes the need to consider community customs and values. Publicity should inform rather than sensationalize private lives. While the media has significant freedom under the First Amendment to publish matters of public interest, this freedom must be balanced against the risk of infringing on individual privacy. 

The Court disagrees with the Appeals Court's finding that the articles represented a "morbid and sensational prying." The story originated from the biological mother’s search for her long-abandoned daughter, making it a matter of public interest. The report on Mrs. Gottschalk's actions was a legitimate news story, and the plaintiffs' personal histories became relevant to the public narrative due to her return. Thus, individuals may become subjects of public interest regardless of their desire for privacy when significant events unfold.

The conclusion reached is that the Post articles, when considered in their entirety, do not amount to an unreasonable intrusion into the plaintiffs' private lives, and therefore, the published information is deemed to be of legitimate public interest. Consequently, the trial court's decision to grant summary judgment in favor of the defendants is affirmed. The private facts tort is recognized in this jurisdiction, but the evidence presented by the plaintiffs was insufficient to challenge the defendants' summary judgment motion. The author concurs with the outcome but disagrees with the reasoning provided by the majority. Justice Meyer joins in this concurring opinion. Additionally, while the court has not definitively addressed the validity of the "private facts" tort, previous cases have denied recovery without resolving the existence of such a cause of action.