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Record: 11
Subject(s): PRIVACY, Right of -- United States; DISCLOSURE of information -- United States; RAPE victims -- United States
Source: Communication Law & Policy, Spring99, Vol. 4 Issue 2, p201, 42p
Author(s): Johnson, Michelle
Abstract: Examines court rulings regarding the protection of rape victim's privacy suits from media identification in the United States. Importance of balancing individual rights and collective good in privacy suits; Impact of disclosing names on public awareness of social issues; Account on the case regarding the publication of the rape victims names in the television station.
AN: 3349352
ISSN: 1081-1680
Database: Academic Search Premier


In spite of a string of unfavorable court decisions, rape victims continue to bring privacy suits against news organizations that identify the victims. Based on case history, journalists have little to fear from such privacy suits because appellate courts usually find victims' names add credibility to stories and, therefore, are of public interest. Most judges seem to believe that they cannot logically rule a basic fact, such as a name, to be private in one set of circumstances and not in others. A ruling in rape victims' favor may create a slippery slope that erodes the press' First Amendment freedoms. However, the courts' limited opinions provide victims with the possibility that in some circumstance a court may rule against the press on this issue. From a journalist's perspective, a broader ruling is needed to discourage rape victims from bringing suits that, while destined to be unsuccessful, are nonetheless costly to defend.

For many journalists, the issue of how to treat rape victims seemed settled in the 1980s. Reporters generally respected victims' privacy by not using their names in news stories. But in the early 1990s, the Des Moines Register's receipt of a Pulitzer Prize for a series of articles that profiled a rape victim[1]--followed by public criticism of the New York Times for its profile of Patricia Bowman, who accused William Kennedy Smith of rape[2]--made some journalists reconsider the appropriate policy.[3] Suddenly, journalists, rape victims and supporters of both groups were once again engaged in an often-passionate discussion about whether journalists ought to publish the identities and details of the victims' lives.[4] Some commentators say journalists should publish sex-crime victims' names because doing so promotes truth and helps reduce the stigma of the crime.[5] Others say journalists cannot write about sex-crime victims without tainting them, and thus, making victims reluctant to report the crimes against them.[6] While public attention to the issue seems to have faded for the moment, stories still force journalists to revisit the issue.[7] In 1997, California Community Newspapers editors confronted the unusual situation of how to cover sexual assault charges filed against one of their columnists by a city councilwoman.[8] Journalists covering the Waco hearings received public criticism for identifying rape victim Kiri Jewel.[9] At Marshall University, the student newspaper's decision to name rape victims caused the college president to transfer control of the paper from the journalism department to a more conservative student publications board.[10] In Minnesota, a rape victim was forced to go public to correct errors in the initial reporting of a story about her.[11]

Many journalists and scholars believe rape-victim identification is an ethical issue to be dealt with through careful reasoning. [12] The United States Supreme Court largely settled the legal issues of privacy in two decisions.[13] By requiring the state to show a compelling interest to override the First Amendment protection given to the publication of truthful information, the Court made it difficult-if not impossible- for rape victims to win privacy suits against media that identify the victims.[14] However, the prospect of failure has not deterred rape victims from filing privacy suits against the media. Four such cases[15] have been reported in the nine years since the Court's most recent decision-in comparison to seven cases in the preceding 27 years.[16] In addition, the state of Florida attempted criminally to prosecute the Globe for publishing a rape victim's name.[17] The legal issue may seem to be largely settled, but for rape victims-and the news organizations that must defend themselves against victims' suits-the battle goes on.

For news organizations, the good news is that they most likely will win privacy suits brought against them by rape victims. The ensuing examination of' reported privacy suits involving rape victim identification shows such suits are nearly always lost at the appellate level because courts find information related to the commission, investigation and prosecution of crimes to be of public interest. Courts have made it clear that once a news organization learns information about a public matter, its publication cannot be restricted.[18] If the courts allowed one news organization to be punished for reporting the name of a victim, how could other news organizations be sure they would not also be found liable? Most would probably choose to err on the side of caution, omitting public information. Thus, a judgment against one news organization might encourage media not to publish names of rape victims. Such self-censorship would leave the news media unable to fulfill their democratic role as watchdog for American society. A press that systematically omits information-in this case information related to crime and punishment-cannot be considered a reliable monitor of American government generally and the criminal justice system in particular.

The bad news for news organizations, of course, is that rape victims continue to pursue their privacy claims. This may be due to the judicial system's failure to rule out the possibility that a victim may bring a case in which the state's interest in protecting her privacy is so compelling it outweighs the press' First Amendment rights. The courts' insistence that their decisions are confined to the facts in the cases before them seems to give victims more hope than is justified when one looks at the overall trend in the courts' decisions.

This article reviews court decisions in invasion of privacy suits stemming from media identification of rape victims and concludes courts are unlikely to punish the press for reporting such a basic fact as the victim's name. While judges use various legal reasoning approaches to side-step rape victims' privacy claims, the courts generally seem to agree that media coverage of crime and courts is in the public interest and such coverage should be as complete as possible. These cases demonstrate a fundamental weakness in the private facts branch of privacy law: regardless of the hurt caused by disclosure of personal information, judges tend to believe they must find such disclosures to be in the public interest or risk creating a chilling effect on coverage of public problems. If news organizations fear the First Amendment will not protect their publication of truthful information, they may be reluctant to cover sensitive issues such as rape. Most judges want to avoid this kind of chilling effect because a primary function of the American news media is to inform the public about social problems, such as crime.

The first section of this article outlines the state of the private facts tort generally, providing a framework in which to fit the discussion of rape victims' privacy suits. In the following three sections, the analysis of court decisions has been organized according to cause of action. The first section reviews decisions in criminal cases where news organizations named sex-crime victims in violation of state law. The second section examines civil cases in which victims referred to criminal statutes to support their claims of invasion of privacy. The third section addresses civil suits for invasion of privacy in which victims base their claims on common law. The conclusion ties together the analyses of court decisions and explains victims' lack of success in light of First Amendment theory. The study concludes that the courts generally have handled victims' suits appropriately, given society's need to be informed about crime and the criminal justice system. This article is limited to an examination of cases in which the news media have already published or broadcast rape victims' names; it does not address government action taken to prevent journalists from obtaining-and thus publishing-victims' names.[19] This article also does not address privacy suits spawned by publication of crime details rather than the victim's identity.[20]


Privacy and First Amendment Theory

Privacy is not mentioned in the U.S. Constitution. Courts and legislatures created the right as they sought to protect certain areas of American life from public exposure.[sup 21] In the context of media coverage, privacy includes four separate torts: appropriation, intrusion, false light and private facts.[22] The privacy torts of appropriation and intrusion are fairly clearly defined and offer reliable protection within their narrow boundaries. But the publication of private facts-the tort most lay people envision when thinking about their "right to privacy"-is rarely punished.[23] The lack of enforcement stems from a flaw in the law's conception. From the beginning, proponents of the privacy tort have advocated an exception for news "of public interest."[24] But how does one define what is and is not of public interest?

In the mid-20th century, many scholars and jurists believed the First Amendment should primarily protect political speech. This perspective, although inherent in the writings of early American leaders,[25] gained popularity among modern legal scholars largely due to the work of Alexander Meiklejohn.[26] In Meiklejohnian theory, freedom of the press is necessary because citizens need places in which to discuss political ideas and a means of acquiring information that can enlighten their discussion.[27] Because the end good in Meiklejohnian theory is a vibrant democratic society, some proponents accept limitations on speech or publications that do not advance citizens' political discussion.[28]

However, some scholars and jurists interpret Meiklejohn's writings expansively, claiming that the First Amendment protects all speech that might influence public thought. For example, Diane Zimmerman explains:

[T]he attitude of individual voters toward an administration's economic philosophy may be influenced by their knowledge of the latest government economic indicators and the President's policy speeches and life style. But the voters might be equally affected by a newspaper story describing the impact of that economic philosophy on an ordinary automobile worker who has just collected his last unemployment check and is unable to support his children or meet mortgage payments.[29]

The Private Facts Tort

Although the public and government paid little attention to privacy in the first few decades of this century, the number of states that recognize one or more of the four modern privacy torts increased steadily from the late 1930s through the early 1960s. Today, most states recognize at least one of the four privacy torts.[30] In addition, the "right to privacy" has significant public support,[31] and the number of private-facts suits in particular has increased in the latter part of the century.[32] The public's willingness to bring private-facts suits may be due to the perception of a continuously strengthening right to privacy. While highly publicized cases such as Griswold v. Connecticut and Roe v. Wade acknowledged a constitutional right to be free of interference from government,[33] not media or other private entities, the distinction may be lost on most lay people. In addition, Americans seem to be more concerned with privacy as technology makes it easier to collect, analyze and market information on individuals.[34]

Support for the idea of a right to privacy, however, has not generated a means for successful legal action by people exposed in the media. While most state and federal appellate courts acknowledge a right to privacy, few rule in plaintiffs' favor on a regular basis.[35] The problem, it seems, is the idea of public interest. Certainly Americans have an interest in private information about political candidates because their personal lives may reflect on their ability to serve in office; but Americans have just as much interest in social problems such as teen pregnancy or drug use, and as explained above, stories about how individuals confront these problems may inform the public as much as, or more than, for example, experts' statements about how to treat the problems.

Given the broad range of problems American citizens encounter in their daily lives and about which they need to be informed, courts have erred on the side of caution, finding most things published in news reports to be of public interest. Courts have said death, by usual or unusual means, is of public interest.[36] That is not surprising, but courts also found seemingly trivial subjects, such as people in a love affair and the bizarre personal exploits of a bodysurfer, to be of public interest. [37] Photographs of a football fan with his pants unzipped at a game and a high school soccer player running for a ball with his genitals exposed were deemed newsworthy because the sports events were of public interest.[38] As long as judges can find some connection-however tenuous-between information about plaintiffs' private lives and either their public lives or a public issue, judges seem inclined to defer to journalists' judgment about what interests the public. This judicial predisposition has led a scholar to say that for practical purposes "public interest" in privacy law does not mean an issue, event or person affecting the public, it simply means the public finds that issue, event or person interesting.[39] Most judges appear to have followed the lead of Judge Charles Clark who wrote in 1940:

Regrettably or not, the misfortunes and frailties of neighbors and "public figures" are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.[40]

Rape Victims' Suits

During the past three decades, no single group has brought more private-facts suits than rape victims. These cases are part of the overall increase in privacy suits, but they also reflect changes in the status of crime victims and of women in society.[41] In the 1960s, crime victims began campaigning for better treatment by the criminal justice system because historically they had been treated poorly by the government and society.[42] While the Constitution guarantees criminal suspects specific rights in the judicial process, no rights are given to victims. In addition, crime victims faced social stigma caused partly by the perception "that victims did or said something that in some sense contributed to their being harmed."[43] In the 1970s, the burgeoning victims' movement gained support from trauma researchers. Picking up on research done on Vietnam War veterans, feminists began documenting trauma in rape victims.[44] Feminist researchers who accompanied rape victims to hospitals noticed and recorded the poor treatment victims received. Feminist and non-feminist researchers also documented the poor treatment victims received from the criminal justice system.[45] In the 1980s, the government began responding to the victims' movement with legislation that established victims' rights within the criminal justice system, gave victims' more power by encouraging the use of victim impact statements in sentencing, and created funds for victim compensation.[46]

At the same time victims of all crimes fought for better treatment from the criminal justice system, feminists sought to change the way society treated rape victims. The women's movement helped reform the way police and prosecutors dealt with rape cases, but it was even more successful in shaping media coverage of rape. Before the 1970s, most news organizations routinely named rape victims.[47] During the 1970s, women's groups and rape counselors convinced editors to stop naming rape victims.[48] Rape-victim advocates also were successful in establishing ties with journalists whom, as they wrote more and more about crime victims, turned to the advocates as expert sources.[49] As sources, feminists were able to propagate their views on the appropriate treatment of rape victims by the media and government.

Feminists convinced many journalists to be more considerate of rape victims' desire for anonymity. Journalists who rejected the advice found themselves faced with an increasing number of lawsuits for invading victims' privacy. Given the general media policy against disclosure, some rape victims became convinced they had a right not to be named without their permission. Journalists, however, asserted they had the right to decide who to name in news stories and, in some instances, journalistic standards demanded that rape victims be named. Perhaps because both parties felt strongly about their rights-whether it was the right to privacy or to freedom of the press-they tended to settle their disputes in court. In such cases, the media usually emerged victorious. Rape victims had some success in preventing reporters from learning their names or other personal information,[50] but they generally were not able to win damages in court after the information was published.


About half of the states offer some kind of statutory protection for crime victims who do not want their names known. Nearly all of these laws attempt to shield victims by preventing the press from obtaining their names.[51] However, three states-Georgia, South Carolina and Florida-took the direct approach and passed laws in the 1910s that prohibited mass media from publishing or broadcasting the names of sex-crime victims.[52] Wisconsin had a similar law from the mid-1920s to the mid-1970s, but the state legislature repealed it[53] after the U.S. Supreme Court indicated Georgia's law could be unconstitutional.[54] Florida's legislature amended its statute after a state court of appeals declared the law unconstitutional in 1993;[55] it has not been tested again.[56]

Only Wisconsin and Florida have criminally prosecuted news organizations for publishing rape victims' names.[57] Neither prosecution was successful, and given recent Supreme Court decisions, it seems unlikely that a conviction in such a case would be upheld.[58] However, the federal and state courts have not completely ruled out the possibility that some criminal action might be acceptable.

State v. Evjue[59]

The Wisconsin law prohibiting the publication of rape victims' names was passed by the legislature in 1925.[60] The law was first used in 1947. On Nov. 16, Madison's Capitol Times ran on the front page an account of a gruesome murder and rape.[61] Two men had kidnaped University of Michigan student Janet Rosenblatt and her brother-in-law. Rosenblatt was raped, and her brother-in-law was killed.[62] The Capitol Times named both victims in its story, provoking an outcry from readers who felt Rosenblatt should not have been identified.[63]

Other newspapers, including the Milwaukee Journal and Milwaukee Sentinel, also identified Rosenblatt, but they did it indirectly by describing her as a relative of the murdered man and a University of Michigan student.[64] Within a week of the crime, however, the Chicago Tribune and several Wisconsin newspapers identified Rosenblatt by name or photograph.[65] Yet the Dane County prosecutor chose to bring charges against only William Evjue, owner and editor of the Capitol Times.[66]

Evjue responded to the charges by filing several motions that contended the statute prohibiting publication of rape victims' names violated both the federal and Wisconsin constitutions.[67] The trial judge sustained Evjue's pleas and declared the statute unconstitutional.[68] The state then appealed to the Wisconsin Supreme Court, which heard the case in May of the following year.

In an opinion by the chief justice, the Wisconsin Supreme Court reversed the trial court judge's decision and declared the law constitutional.[69] Noting that speech could be restricted if it presented a clear and present danger of causing a substantive evil, the chief justice wrote: "These matters are primarily for the legislature and it is not for the office of this or any other court to set aside a legislative enactment unless it clearly contravenes some constitutional provision. Whether there is a 'clear and present danger' warranting the enactment of the statute is for the legislature."[70]

Today, the Evjue precedent seems less than satisfactory because the court's opinion reflects legislative deference rather than a thorough First Amendment analysis. In applying the clear and present danger test, the court simply noted that whether there was such a danger warranting the enactment of the statute is a decision for the legislature.[71] In the context of the times, however, the decision is more understandable. The U.S. Supreme Court had upheld convictions for speech that violated social standards and provoked people to violence.[72] The Wisconsin Supreme Court seemed to be following the higher court's lead in finding the publication of rape victims' names unworthy of First Amendment protection. [73] The state court maintained there was little social value in the publication of rape victims' names;

When the situation of the victim of the assault and the handicap prosecuting officers labor under in such cases is weighed against the benefit of publishing the identity of the victim in connection with the details of the crime, there can be no doubt that the slight restriction of the freedom of the press prescribed by sec. 348.412 is fully justified.[74]

The trial judge, however, had the final say in the case. The Wisconsin Supreme Court sent Evjue's case back for trial, and the judge, who apparently did not agree with the appellate court's decision, dismissed the case for lack of evidence.[75] The district attorney again appealed to the state supreme court-Rosenblatt had been identified half a dozen times.[76] The appellate court could do nothing, however. Overturning the trial judge's decision would place Evjue in double jeopardy.

Given the twisted outcome of the Wisconsin case, other states may have been reluctant to test their criminal statutes. There were opportunities. Media organizations identified rape victims, a few of whom brought civil suits based on the criminal statutes,[77] but the states themselves took no action until the media swarmed in Palm Beach to cover a case involving America's "royal family," the Kennedys.

State v. Globe Communications Corp. [78]

On Apr. 2, 1991, a police spokesman in Palm Beach, Fla., told reporters a woman had reported being assaulted at the Kennedy home on March 30 around 4 a.m.[79] Reporters were told the woman had been treated for minor injuries at the hospital. Police were investigating. No charges had been filed,[80]

During the next few days, news trickled out of Palm Beach. The day after the police announcement, U.S. Senator Edward Kennedy and his son denied involvement in "the incident," leaving fingers pointing to William Kennedy Smith, the Senator's high-profile nephew, as the only viable suspect.[81] On Apr. 4, the police officially named Smith as their suspect, and the major newspapers identified him as such.[82]

The same day, The Washington Post noted: "By midday yesterday, the name of the alleged victim was circulating widely through the status-conscious Palm Beach social set. Friends said she is a member of a less-prominent Palm Beach family."[83] By Apr. 13-two weeks after the incident and less than two weeks after the police announcement editors were beginning to reconsider their usual policy of leaving rape victims' names out of the reports.[84] London's Sunday Mirror named the victim, Patricia Bowman, in an article on Apr. 7.[85]

The Globe, a tabloid newspaper based in Florida, was the first American news organization to publish Bowman's name.[86] In the issue that appeared on newsstands on Apr. 15, the tabloid revealed her name and ran pictures of Bowman and Smith under the headline "Rape Gal Exposed. "[87] On the same day he charged Smith with rape, the Palm Beach County prosecutor charged the Globe with violating Florida's law prohibiting the publication of rape victims' names.[86]

Trial Judge Robert Parker declared the publication law unconstitutional because it gave judges no leeway to consider the circumstances of a particular publication. [89] In similar cases, courts found unconstitutional statutes that unilaterally barred publication of certain information or blocked access to court proceedings.[90] In order for statutes limiting access or publication to be constitutional, the judge said, they must allow judges to hold hearings to determine whether the case facts justified limiting the press' rights.[91]

In addition, Judge Parker said, the Florida statute was invalid because it applied only to mass media and not to interpersonal communication.[92] Noting the Globe originally obtained Bowman's name from a local woman who could not be punished, the judge remarked: "With regard to local gossips they had best do it by mouth only. At arguments on October 17th, the State Attorney threatened that 'if Mrs. Jones gets a megaphone or copy machine, we'll prosecute her too!'"[93]

Finally, it is questionable whether any substantial state interest exists to justify a statute prohibiting the publication of rape victims' names, the judge said.

The fact that forty-six states are able to conduct sexual assault investigations and trials without punishing the press criminally for a disclosure of the victim's identity is, in itself, a circumstance which leads this court to conclude that the state's expressed concerns about a victim's safety and privacy are somewhat exaggerated and overblown. The State has selected a weak factual scenario to demonstrate such concerns. Miss Bowman was not in any real, potential danger and surely she must have realized that charges would be filed and that she would have to testify in public, and in Florida, to attend a deposition at the instance of defense counsel. Or did the police and prosecutor tell her such things?[94]

The state appealed Judge Parker's decision to a District Court of Appeals, which affirmed.[95] The state appealed the appellate court's decision to the Florida Supreme Court, which affirmed the lower courts' decisions.[96]

Relying heavily on the U.S. Supreme Court's decision in Florida Star v. B.J.F.[97] the Florida Supreme Court said the state can rarely punish the publication of truthful information.[98] It may never automatically impose liability as Florida attempted to do with its law because there may be times when the publication of information as sensitive as that of rape victims' identities is in the public interest.[99] For example, the victim may want her name published as part of an effort to raise public awareness about rape.

Second, the state supreme court said, the law unfairly punishes mass media for disseminating victims' names.[100] Individuals also may cause victims harm or embarrassment by spreading their names. The state had asked the court to interpret the law as including "both media giants and non-media individuals who broadcast the victim's identity through non-media instruments, such as megaphones, fliers and facsimile machines."[101] But the Florida Supreme Court refused to interpret the law this way because the court did not think it would be consistent with the legislature's intent and "we do not rule out the possibility that the legislature could fashion a statute that would pass constitutional muster."102[102]

Following the court of appeals decision in State v. Globe, the Florida legislature re-enacted its law prohibiting the 'publication of sex-crime victims' names with a provision making information identifying victims confidential and exempt from release under the state open records act.[103] The new version has not been tested in court, but it seems unlikely the law would survive judicial scrutiny. While courts have not ruled out the possibility of an acceptable criminal statute in this area, the criteria they have outlined for such a statute would be hard to meet.[104]

First, the state must show a compelling state interest. The desires to protect victims' privacy and encourage victims to report sex crimes may not constitute a substantial state interest, particularly when the state cannot prove a publication ban would further these two goals. [105] A key issue here seems to be the government's ability to protect victims' privacy with laws prohibiting police from releasing victims' names. When a state's interest can be accomplished without prior restraint, the U.S. Supreme Court prefers that the government take the alternative, less-restrictive route.[106]

Second, the state would have to make provisions in its statute[107] for a hearing so judges or juries could determine the merits of each publication. [108] Case-by-case consideration of a publication law, however, would probably limit its enforcement. The news media would be able to publish victims' names without liability as long as they could make a strong argument that doing so was in the public interest. In common law privacy cases, the courts have been very willing to give media defendants the benefit of the doubt when determining whether information is of public interest.[109]

Finally, the law would have to apply to all people equally yet be no broader than necessary to accomplish the state's goals.[110] These two provisions are difficult to balance. If the law did apply to everyone, then a victim's friend could be prosecuted for telling another friend of the assault. But does such a prosecution really further the state's interest in protecting victims' privacy?

Given such stringent criteria, it seems unlikely that many states would sink resources into fashioning a criminal statute that punishes the publication of victims' names. However, the three southern states have kept their laws active. Florida, in particular, has made a significant effort to fashion an enforceable law.[111] These states may feel the mere existence of such laws provides an incentive for the media to censor themselves. But if the laws don't work as a deterrent, there may yet be attempts within these three states to prosecute news organizations for identifying victims of sex crimes,[112]


Crime victims only recently began to bring privacy suits against news organizations for the publication of their identities. Prior to the 1960s, State v. Evjue[113] was the only reported legal case that specifically dealt with the identification of crime victims. In the late 1920s and 1930s, two crime victims sued news organizations for invasion of privacy, but their complaints focused on the publication of details of the crime more than on the publication of the victims' identities. [114]

In the 1960s, however, rape victims began to sue for invasion of privacy, claiming the publication of their names caused them humiliation and subjected them to harassment. These suits forced courts to confront the issue of whether news organizations could be prohibited from, or punished for, publishing truthful information that had the potential to harm victims. The answer to the question seems to be no.

Most of these suits brought by crime victims come from the three southern states that have criminal laws prohibiting publication of rape victims' names. The U.S. Supreme Court has heard two such cases,[115] In both cases, the Court did not formally declare the statutes unconstitutional but left serious doubt as to whether such a statute could be enforced in a manner that passes muster under the First Amendment. Yet the state legislatures keep the laws on their books, and rape victims continue to bring suits in reference to the statutes. This has been possible because until the 1994 decision in State v. Globe, [116] federal and state courts were careful to limit the scope of their decisions to the facts in the cases before them.

Nappier v. Jefferson Standard Life Insurance Co.[117]

During the early 1960s, the Dental Division of South Carolina's Department of Health sent two of its employees to public schools to teach dental hygiene. The two women, Patricia Nappier and Maxine Gunter, used a puppet called "Little Jack" in their presentations. As a result, the women were known throughout the state as "The Little Jack Girls."[118]

On Nov. 27, 1961, the two women were raped in a hotel room in Kingstree, where they were to give presentations in schools the next day. The rapist then stole their station wagon, which had the Little Jack logo painted on both sides. Police found the station wagon in Florence, and an area television station took pictures of it the next morning. The television station broadcast pictures of the station wagon with a story about the rape on the evening and late news programs.[119] During both broadcasts, viewers could see the Little Jack logo on the side of the vehicle.[120]

The women sued the television station, claiming it violated South Carolina's law prohibiting the publication or broadcast of rape victims' names. U.S. District Court Judge Charles Wyche dismissed their suit, saying the women had not actually been named in the broadcast.[121]

The Court of Appeals, however, disagreed. First, the court said, in the context of the statute, the word "name" also means "identity."[122] The women were identified when the television station showed their station wagon-a unique and identifiable vehicle-along with its story about the rapes.[123] * Second, the women could sue on the basis of common or statutory law or a combination of the two. The common law makes matters of public interest and public record privileged. However, the court said, South Carolina's statute removes that privilege in cases involving the identification of rape victims.[124] In the court's opinion, Judge Albert Bryan explained:

No matter the news value, South Carolina has unequivocally declared the identity of the injured person shall not be made known in press or broadcast. ... No constitutional infringement has been suggested. Indeed, Standard conceded in oral argument that if the broadcast did in fact and in law "name" the plaintiffs, then they had a right of action.[125]

The Nappier decision came at a time when more and more states were recognizing a right of privacy.[126] It lent support to the idea that the First Amendment protects speech that has social value, but where society derives no social value from speech or publication, First Amendment freedoms can be limited.[127] The U.S. Supreme Court would soon make it clear, however, that freedom of speech and freedom of the press rarely can be limited.

Cox Broadcasting Corp. v. Cohn[128]

The pivotal case dealing with the identification of rape victims began on a hot summer night in 1971.[129] Seventeen-year-old Cynthia Cohn went to a petty with some friends in Sandy Springs, Georgia. She had quite a bit to drink and passed out. Later, she was found dead. Initially, police said the girl died of a drug overdose or alcohol poisoning. As expected, an autopsy showed Cynthia Cohn died by choking on her own vomit, but the autopsy also showed she had been raped.[130] Seven months later, six teens who attended the party were charged with rape and murder.[131] Three eventually pled guilty to rape, and three to attempted rape.[132] * A local television station covered the hearing where five of the boys entered their guilty pleas.[133] The sixth had a trial date set and later entered his plea.[134] During the hearing, the station's reporter heard Cynthia Cohn's name. He also read copies of the indictments, which contained the girl's name.[135] In his report for the evening news, the reporter detailed the crime and court proceedings. In his account, he used Cohn's name and showed a photograph of her taken from her high school yearbook. [136] The station repeated the story the next day. Newsweek magazine reported:

For Cynthia's family, the public disclosure of her name turned life into a nightmare. Her brother and sisters were subjected to humiliating taunts. Cruel children produced graffiti that read: FREE THE SANDY SPRINGS SIX. Hurt, mortified and angry, Cynthia's father, Martin Cohn, owner of a bill-collection company, brought suit against television station WSB-TV for invasion of privacy, invoking a Georgia statute that forbids the publication of a rape victim's name as a matter of public policy.[137]

The statute made publication of rape victims' names a misdemeanor.[138] It did not mention civil sanctions for such a publication. However, the trial court accepted Cohn's argument, ruling that the statute allowed victims to seek civil damages.[139] The trial court also granted Cohn summary judgment, saying the television station was responsible for harm suffered as a result of the broadcast of Cynthia's name. A jury, however, would set the actual damages, or monetary award, after a trial.[140]

Cox Broadcasting, which owned the Atlanta television station, appealed to the Georgia Supreme Court. The state supreme court said the trial court was wrong; the law applied only to criminal prosecutions. [141] It did not allow people to bring civil suits as a result of being identified by the news media.[142]

However, the court said, Martin Cohn could sue for a common law invasion of privacy. [143] This ruling was an anomaly-according to accepted law, privacy plaintiffs must show that private facts about themselves have been revealed.[144] Martin Cohn was not named in the television broadcast; his daughter was, but she was dead, and accepted law also said privacy plaintiffs must be alive.[145] The Georgia Supreme Court ignored these legal standards and sent the case back to trial so a jury could determine whether Cohn's "zone of privacy" had been violated.[146]

The television station then made a motion to have its case reheard, arguing that Cynthia Cohn's name was of public interest, and thus, could be published without penalty.[147] This argument also was accepted law. Plaintiffs in privacy suits had to show that no one knew the information about them, that the information was offensive to a reasonable person, and that it was not of legitimate public concern.[148] In response, the state supreme court said there was no public interest in knowing the name of a rape victim, and being pressed, declared the statute banning publication of rape victims' names constitutional.[149]

Cox Broadcasting appealed to the U.S. Supreme Court. The high court could have disposed of the case easily by saying Martin Cohn could not sue because nothing in the broadcast pertained to him or he could not sue on behalf of his daughter because she was dead. The Supreme Court chose not to take the easy route, however. It seems likely the Court wanted to hear Cox Broadcasting's case so it could issue an opinion nullifying a California Supreme Court decision that seemed to be eroding the media's First Amendment protection.

The California case, Briscoe v. Reader's Digest Association, involved a privacy suit brought by a man who participated in a truck hijacking in 1956.[150] Eleven years later, Reader's Digest reported the crime in a story about "The Big Business of Hijacking."[151] The man, Marvin Briscoe, sued the magazine, claiming he had been a model citizen since 1956 and public disclosure of his previous criminal activity humiliated him. Briscoe said that while the subject of the article was newsworthy, his name was not and should not have been included. [152]

The California court agreed with Briscoe, saying the First Amendment protects reports that have public interest, and reports of criminal activity certainly have public interest:[153]

However, identification of the actor in reports of long past crimes usually serves little independent public purpose. Once legal proceedings have terminated, and a suspect or offender has been released, identification of the individual will not usually aid the administration of justice. Identification will no longer serve to bring forth witnesses or obtain succor for victims. Unless the individual has reattracted the public eye to himself in some independent fashion, the only public "interest" that would usually be served is that of curiosity.[154]

The California Supreme Court sent the case back to the trial court to decide whether Briscoe's name was newsworthy-or of public interest-according to the following test: (1) what was the social value of the name, (2) what was the depth of the article's intrusion into Briscoe's private affairs, and (3) to what extent did Briscoe voluntarily enter the public eye?[155]

Other courts began to adopt the Briscoe test. Five months before the Supreme Court heard the Cox case, a Washington, D.C., trial court applied the Briscoe test-also called the social value test-to a case in which a rape victim sued the Washington Post for publishing her name.[156] The judge ruled in favor of the victim, saying, "the publication of the plaintiff's name and address was of no essential part of any exposition of ideas, and of such slight social value that any benefit that might have been derived from it was outweighed by the social interest in order and morality."[157]

In the Court's opinion in Cox, Justice Byron White noted the D.C. trial court's decision and the fact that the Georgia Supreme Court referred to the Briscoe decision in its opinion in Cox. [158] If the U.S. Supreme Court was concerned about plaintiffs using the Briscoe test to circumvent the First Amendment, Cox presented a timely opportunity for the justices to deal with the problem.

White began his analysis of the issue by acknowledging a right of privacy. However, he said, the Cox case was more problematic than many privacy suits because Cohn claimed his privacy was invaded by unwanted publicity about his private affairs. "Because the gravamen of the claimed injury is the publication of information, whether true or not, the dissemination of which is embarrassing or otherwise painful to an individual, it is here that claims of privacy most directly confront the constitutional freedoms of speech and press."[159]

Although the Court required a high standard of fault, it permitted people to seek redress from the media for the publication of falsehoods.[160] As yet, White wrote, the Court had not addressed the issue of whether the press could be punished for the publication of private but truthful information.[161] Nor would the high court answer that question in Cox, White said. Instead, the Court would limit its decision to the issue of whether the government could punish the press for publishing information-in this case, a rape victim's name obtained from public records. In short, White said, the government may not punish such publications. [162]

In a democratic system, citizens have the responsibility to monitor government actions. Because "each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations."[163] In regard to the judicial system, White said, scrutiny by the press ensures fair trials and public attention to court operations.[164] Therefore, information about crimes and subsequent prosecutions is of public interest.

Further, White said, there is such a public interest in the accurate reporting of judicial proceedings that information disseminated about them is privileged and can be republished or broadcast with immunity.[165] This privilege includes court documents as well as court testimony. When Georgia officials included Cynthia Cohn's name in court documents, they not only designated her name as being of public interest, they placed it within the public domain where anyone could discover it.[166] To then prosecute the television station for broadcasting Cohn's name is a clear violation of the First Amendment. White explained:

We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public.[167]

In giving the press broad protection for publishing information contained in court documents or discussed in court proceedings, the Supreme Court did not leave states without means to protect rape victims' identities. State governments could ensure that victims' names never became public by leaving them out of public documents and avoiding mention in public proceedings.[168] In the years following the Cox decision, states and municipalities attempted to do this by passing laws and adopting policies that required employees to leave victims' names out of documents, use aliases or use victims' initials instead of their full names.[169] Protection of victims' privacy, however, depended on public employees fulfilling their duties, and almost inevitably, one made an error.[170]

Florida Star v. B.J.F.[171]

On Oct. 20, 1983, a woman reported being raped and robbed to the Jacksonville Sheriff's Department.[172] A department employee prepared a crime report, which included the victim's full name, and placed a copy of the report in the department's press room. A reporter-trainee for the Florida Star, a weekly newspaper based in Jacksonville, copied the report verbatim. A Star reporter then prepared a brief story from the reporter-trainee's notes, including the victim's name. On Oct. 29, the Star published the item in the newspaper's "Police Reports" section, which contained 54 such items about local crime.[173]

The victim's coworkers and acquaintances saw the article and mentioned it to her.[174] Her mother received several threatening phone calls, and eventually the victim felt compelled to move, change her phone number, seek police protection and get counseling for mental health. The victim sued the sheriff's department and the newspaper for violating Florida's statute that forbids the publication or broadcast of rape victims' names.[175] The sheriff's department settled the case for $2,500.[176]

After a one-day trial, the judge gave the victim, known in court documents as B.J.F., a directed verdict, finding the newspaper negligent for violating the Florida law.[177] A jury awarded her $100,000 in damages.[178] The newspaper appealed to a state court of appeals, which upheld the judge's decision in a three-paragraph opinion.[179] The Florida Supreme Court refused to hear the case.[180]

The U.S. Supreme Court, however, agreed to hear the newspaper's appeal. It reversed the Florida courts' decisions and, in an opinion written by Justice Thurgood Marshall, said news organizations cannot be punished for printing information they legally obtained absent a compelling state interest.[181]

In its appeal, the Star relied on the Supreme Court's decision in Cox[182] and two subsequent cases involving publication of the names of juvenile offenders.[183] The Supreme Court said the reference to Cox was inappropriate, however, because Cox involved information gathered during a court proceeding.[184] The Court ruled in favor of the television station largely because the press plays an important role "in subjecting trials to public scrutiny and thereby helping guarantee their fairness."[185] In the Florida Star case, there was no trial. In fact, B.J.F.'s assailant was never caught.[186]

The proper precedent was one of the two juvenile cases, Marshall wrote. In Smith v. Daily Mail Publishing Co., the Court found unconstitutional an indictment of two newspapers for publishing the name of a juvenile offender.[187] Reporters had learned the name from police, witnesses and a local prosecutor. Daily Mail established that if"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."[188] A court must ask itself two questions, Marshall wrote. First, it must ask whether the newspaper lawfully obtained truthful information about a matter of public importance.[189] If the newspaper had obtained such information, the publication of it usually deserved First Amendment protection. However, the government could still protect people's privacy by withholding information from the press.[190]

The second question a court must ask, Marshall wrote, was whether punishing the press for publishing lawfully obtained and truthful information about a matter of public importance furthered a state interest of the highest order.[191] In this ease, Marshall said, punishing the press for publishing information that was already available to the public served no purpose.[192] Other people or organizations may not seek the information, but if they did, it would be available to them as well. Punishing publication of information does not help keep the information private.[193]

In addition, punishing the press for publishing truthful information may result in self-censorship. A lack of First Amendment protection "would force upon the media the onerous obligation of sifting through government press releases, reports and pronouncements to prune out material arguably unlawful for publication," Marshall wrote. "This situation could inhere even where the newspaper's sole object was to reproduce, with no substantial change, the government's rendition of the event in question."[194] Given the press' role as a watchdog of the government, the possibility of self-censorship in this area is unacceptable.[195]

Dorman v. Aiken Communications, Inc. [196]

The year after the Supreme Court decided Florida Star v. B.J.F., the South Carolina Supreme Court considered the constitutionality of that state's criminal statute in a civil suit brought by a rape victim. Following the federal examples, the state court did not hold the newspaper accountable under the law's provisions but declined to rule the statute unconstitutional.

A man to whom she was showing a house raped real estate agent Joyce Dorman at gunpoint in 1987.[197 ]After the rape, the man shot himself and died.[198] The next day, police gave the Aiken Standard a statement about the attack.[199] The statement did not include Dorman's name or the fact that she had been raped.[200] The reporter working on the story obtained Dorman's name from other sources, however, and included it in the story. The following day, two other area newspapers ran stories on the incident that said a woman had been raped but did not identify her by name. Dorman sued the Standard for invasion of privacy and intentional infliction of emotional distress.[201] She based her claim in part on South Carolina's law prohibiting the publication of rape victims' names.[202]

The newspaper asked for dismissal or summary judgment, saying the statute did not create a private cause of action, and in any case, the story was protected by the First Amendment.[203] The South Carolina Supreme Court rejected the newspaper's arguments that the law was unconstitutional.[204] It noted that the U.S. Supreme Court had not declared Florida's statute unconstitutional when given the opportunity in Florida Star, but instead narrowed the scope of the decision to the facts of the case at hand; therefore, the South Carolina court said, it would not declare its state law unconstitutional.[205]

However, the state court added, the newspaper is correct in that the law does not create a civil cause of action. From the way the statute was worded, the court concluded the legislature did not intend to create a civil cause of action along with the criminal offense. "Although Dorman may benefit from its enforcement, the statutory provision is primarily for protection of the public as an entity, and this Court does not construe it to establish a private right of action."[206] If Dorman wanted to pursue her claim, she would have to do so under the common law.

Macon Telegraph Publishing Co. v. Tatum[201]

In the most recent privacy suit to come from the three southern states, the victim did indeed base her suit on the common law instead of the state's law prohibiting publication of sex-crime victims' names.[208] Although the victim, Georgia resident Nancy Tatum, was not raped, the courts treated her civil suit as if she was a rape victim.[209] Tatum shot an intruder in her home as he approached her with a knife in his hand and his pants unzipped.[210] The police ruled the case a justifiable homicide.[211]

The Macon Telegraph ran two stories about the incident. One article reported the attack and subsequent shooting; the other was a follow-up story on the life of the dead intruder. Both stories included Tatum's name and the street on which she lived. Tatum sued the newspaper for invasion of privacy. A jury awarded her $100,000 in damages.[212]

The newspaper appealed to the Georgia Court of Appeals, which affirmed the verdict.[213] The newspaper had relied on the U.S. Supreme Court's decision in Florida Star v. B.J.F., saying that case should prevent the state from finding the defendant liable in a civil suit.[214] The court of appeals distinguished the cases, however, noting B.J.F. based her cause of action on Florida's criminal statute while Tatum sued under the common law.[215] The common law cause of action allowed the jury to determine Tatum's case on its merits, which the court had not been able to do in Florida Star[216] Based on the case facts, the jury found Tatum's name had not been freely released by the police, making it a private fact, and the newspaper had published the name "in willful and conscious disregard" of Tatum's rights. Therefore, the court of appeals said, the Telegraph was liable.[217]

The newspaper then appealed to the Georgia Supreme Court, which reversed the lower court's decision.[218] Like the court of appeals, the state supreme court distinguished the case from Florida Star v. B.J.F. because Tatum based her claim on the common law instead of the state's criminal statute.[219] However, the Georgia Supreme Court said, it would accept the Florida Star test as the proper means for evaluating the constitutionality of Tatum's common law claim. According to Florida Star, a newspaper may not be punished for publishing lawfully obtained and truthful information without a need to further a state interest of the highest order.[220] The Telegraph lawfully obtained Tatum's name, the court said, and "the commission of the crimes, police investigation, and departmental decision that Tatum acted in self-defense are matters of public record."[221] Further, the state supreme court said, Tatum's right to privacy does not outweigh the public's right to know and the press' right to publish because a "free press is necessary to ensure that government operates openly, fairly, and honestly."[222] In matters of public interest, individuals' right of privacy must give way, the court said. It concluded

that Tatum, who committed a homicide, however justified, lost her right to keep her name private. When she shot Hill, Tatum became the object of legitimate public interest and the newspaper had the right under the Federal and State Constitutions to accurately report the facts regarding the incident, including her name.[223]

The privacy suits brought by rape victims in Florida, Georgia and South Carolina provide interesting examples of the judicial system's difficulty in balancing compassion with sound legal doctrine. The courts acknowledge that these victims have suffered trauma and, often, humiliation as a result of the publication of their identities. The courts recognize the states' desire to protect sex-crime victims by designating their names as private information and not of public interest. And to a limited extent, the courts even support the states in their efforts by not declaring the criminal statutes unconstitutional. Yet the appellate courts have been uniformly unwilling to sustain verdicts rendered against media defendants.

Judges seem to feel the public interest in having the media cover law enforcement and the judicial system thoroughly outweighs damage done to individual victims. While the courts will not rule out the possibility of a case in which the victim's right of privacy outweighs freedom of the press and the public's right to know, they seem fearful of the potential self-censorship a judgment against the press might create. Therefore, the U.S. Supreme Court constructed-and lower courts adopted-two strong defenses to protect the press from liability in privacy suits. First, the Court said information obtained from public documents and court hearings is privileged. Second, the Court established a privilege for information the press obtained legally-absent an overriding state interest that has yet to be demonstrated. And, as the next section shows, appellate courts accept these defenses in common-law suits as well as in privacy suits based on criminal statutes.


In the 47 states that do not have criminal statutes dealing with victim identification, sex-crime victims have been just as unsuccessful in pursuing invasion of privacy claims. If anything, courts have been less sympathetic to privacy suits brought under the common law, perhaps because the state has indicated no interest in preserving victims' confidentiality.[224 ]To win a common law privacy suit, the victim must prove that private facts about himself or herself were published, that the publication of that information was highly offensive to a reasonable person and that the information was not of legitimate public concern.[225] In common law suits brought by crime victims, the courts have been willing to accept that the publication was offensive to the victims, but the courts seem undecided about whether the victims' names were private facts and almost always find victims' names to be of legitimate public concern.

Hubbard v. Journal Publishing Co.[226]

The first reported privacy suit involving a rape victim started with the criminal prosecution of the victim's brother. In 1960, 16-year-old Richard Hubbard was given a two-month sentence in a New Mexico juvenile,detention home for running away from home and sexually assaulting his sister.[227] The Albuquerque Journal published a brief notice of the boy's sentencing, including his name, his mother's name and their address.[228] His mother sued the newspaper on her daughter's behalf, claiming the article humiliated her daughter, made people think her daughter was unchaste and lessened the girl's prospects of marriage.[229] The trial judge granted the Journal summary judgment.[230]

Hubbard and her daughter appealed to the New Mexico Supreme Court, which also ruled in favor of the newspaper.[231] In a brief opinion, the chief justice cited a New Mexico statute that required state courts to make their records available to the public.[232] He then noted that in their original article on privacy, Warren and Brandeis suggested any information that would be privileged in libel law should also be privileged in privacy law.[233] Libel law considers court documents, like other government records, privileged, he said.[234] No one can be found liable for republishing information obtained from court records.[235]

The Hubbards then argued that even if information from court records was normally considered privileged, as the chief justice said it was, it shouldn't be in this case because the girl's name was not of public interest.[236] The court disagreed. Referring to William Prosser's noted law review article on privacy,[237] the chief justice said the Journal's article was clearly newsworthy.[238] People are interested in crime. While crime victims may be unwilling participants in public events, they nonetheless shed some of their privacy rights when they are caught up in the drama of crime and punishment.

After the Hubbard decision, there were almost no reported privacy suits involving rape victims for a decade and a half. The two that were reported were based on the South Carolina and Georgia statutes.[239] But in the late 1970s, courts decided a number of privacy suits brought by rape victims.

Ayers v. Lee Enterprises, Inc.[240]

Julie Ayers was raped in June 1973.[241] A few days after she reported the crime, her local newspaper, the Corvallis Gazette-Times, published a story about the crime that included Ayers' name and address. Ayers sued the newspaper and the police officer who gave the newspaper her name.[242]

Ayers claimed her name should have been protected by an Oregon law that exempted crime reports from the state public disclosure law when "there is a clear need in a particular case to delay disclosure in the course of an investigation."[243] The law, however, did not become effective until a week after the News-Gazette printed its story. At the time of publication, Oregon law required police to make crime reports available to the public.[244] Given that, the Oregon Supreme Court followed the U.S. Supreme Court's decision in Cox v. Cohn and said the newspaper could not be held liable for publishing information obtained from a public record.[245]

The Cox decision gave the press a great deal of protection from privacy suits brought by crime victims. However, the U.S. Supreme Court had not ruled out the possibility of a successful suit, and victims were soon looking for ways around the privilege for information obtained from public records and hearings.

Poteet v. Roswell Daily Record, Inc. [246]

Shortly before the Oregon Supreme Court decided the Ayers case, a New Mexico newspaper printed a story about a preliminary hearing in a rape and kidnapping case.[247] The story named the 14-year-old victim. The victim's parents sued the newspaper for invasion of privacy.[248] Anticipating a decision like the one in Ayers, the parents said the newspaper waived its privilege when the reporter told an assistant district attorney the girl would not be named in a story about the incident.[249] Further, the parents said, the newspaper had a policy of not naming rape victims. By establishing such a policy, the newspaper made an implied promise not to name the girl, her parents claimed. The newspaper's story about the preliminary hearing broke that implied promise, the parents said, making the newspaper liable under the doctrine of promissory estoppel.[250]

Promissory estoppel requires a person to make good on his or her promise to another or to make reparations for a broken promise. To win a promissory estoppel case, a plaintiff must have received a promise in clear terms, relied on that promise in determining the course of action, been reasonable in that reliance and suffered harm as a result of that reliance.[251] For example, it would be reasonable to quit one's job when one was offered another job. If one's prospective employer then revoked the job offer, one would suffer and have a reasonable cause for asking for compensation. However, quitting one's job based on a friend's promise to give one a million dollars in lottery winnings probably would not be reasonable or provide a basis for a promissory estoppel suit.

The New Mexico Court of Appeals rejected the parents' arguments.[252] The court said the newspaper did not waive its privilege when its reporter told the assistant district attorney the girl's name would not be used because the reporter had no authority to speak for the newspaper.[253] "Absent authority, the statements of the reporter could not be considered as a waiver of a constitutional privilege by the defendant newspaper."[254]

In addition, the court said, promissory estoppel did not apply in this case. The doctrine applies when one party makes a promise upon which another relies. In the case against the New Mexico newspaper, there was no evidence that the girl, Renee Poteet, or her parents knew about the newspaper's policy before the hearing and subsequent publication of her name, the court said. If the Poteets did not know about the policy, they could not rely on it.[255] The family's attempt to circumvent the newspaper's privilege failed.

Ross v. Midwest Communications, Inc.[256]

While courts declared crime victims' names of public interest in case after case, the courts rarely explained why the specific victim's name or identity was crucial to public understanding of the crime and operation of the judicial system.[257] Finally, in 1989, the U.S. Court of Appeals for the Fifth Circuit issued an opinion that explained, in at least one case, the value of the name.[258]

Texas resident Marla Ross was raped in her home in 1983. The crime was never solved. During the police investigation, Ross viewed a police line-up that included Steven Fossum. Ross told police the man who raped her was not in the line-up. Fossum was later convicted of two other rapes.[259]

In 1986, Minnesota television station WCCO produced a documentary about Fossum that said he had not committed the rapes for which he was convicted. The television station suggested Ross and one of Fossum's supposed victims were raped by the same man.[260] Since Ross had not identified Fossum as the man who raped her, the documentary said, Fossum probably had not raped the other woman either. To make its case, the station pointed out similarities between the two crimes, including the way the rapist gained access to the home and specific demands the rapist made of his victims.[261] In its account, the station used Ross' first name and a picture of the house she lived in at the time of the rape.[262]

Ross and her husband sued the television station and two of its reporters for invasion of privacy. The district court granted the television station summary judgement[263] and the Fifth Circuit affirmed that decision on the basis of Texas' recognition of newsworthiness as a defense in privacy suits.[264]

In her appeal, Ross claimed that while information about the crime might be of public interest, her name was not.[265] Limiting its decision to the facts of the case, the court of appeals said Ross' name was indeed of public interest because personalization of the crime gave the account more impact and credibility. People care less about victims they don't know, the court said, and in light of newspaper hoaxes, they may even doubt an anonymous victim exists.[266] Judge Patrick Higginbotham concluded:

The argument establishing a logical nexus between the rape victim's name and a matter of legitimate public concern is peculiarly strong in this case because the point of the publication was to persuade the public, and in turn the authorities, to a particular view of particular incidents. Communicating that this particular victim was a real person with roots in the community, and showing WCCO's knowledge of the details of the attack upon her, were of unique importance to the credibility and persuasive force of the story.[267]

Star-Telegram, Inc. v. Doe[268]

In 1989, Fort Worth resident Jane Doe was raped at knife point and terrorized in her home by a man who had been on parole for less than three months.[269] Following the early morning assault, the assailant robbed Doe, bound her with strips of bed sheets and stole her car. Doe managed to free herself and call the police. Two days later, police arrested the rapist while he was driving Doe's car in Oklahoma.[270]

On a routine visit to the local police station, a reporter for the Fort Worth Star-Telegram read a copy of the police report on Doe's rape. The report included the victim's real name and address. The reporter, Betsy Tong, wrote two stories about the rape.[271] One, published the day after the rape, reported Doe's age, neighborhood, possession of a home security system and a 1984 black Jaguar, and the fact that Doe was taking medication.[272] The second article, published two days after the rape, identified Doe as the owner of a travel agency.[273] While neither article included Doe's name, people who knew her could easily identify her as the victim.[274]

Doe sued Tong and the Star-Telegram for invasion of privacy, intentional infliction of emotional distress and negligence.[275] The trial court granted the newspaper summary judgment because the articles were true and of public interest.[276] The Texas Court of Appeals reversed the ruling.[277]

The newspaper appealed to the Texas Supreme Court, which ruled in the newspaper's favor in spite of the fact that "there is a presumption under Texas law that the public has no legitimate interest in private embarrassing facts about private citizens."[278] The media should avoid unnecessary disclosure of private information, particularly when such information could be embarrassing, the court said, but holding the media responsible for the effect of each disclosure could encourage self-censorship. The court concluded:

Facts which do not directly identify an innocent individual but which make that person identifiable to persons already aware of uniquely identifying personal information, may or may not be of legitimate public interest. To require the media to sort through an inventory of facts, to deliberate, and to catalogue each of them according to their individual and cumulative impact under all circumstances, would impose an impossible task; a task which foreseeably could cause critical information of legitimate public interest to be withheld until it becomes untimely and worthless to an informed public.[279]

As suggested by Warren and Brandeis, courts have accepted newsworthiness as a defense in common law privacy suits. [280] And while the decisions leave open the possibility that there may be a time when victims' names are not newsworthy, there has yet to be a circumstance in which a court has found this to be the case. Judges seem reluctant to second-guess the media and perhaps foster self-censorship on the part of journalists. As Judge Higginbotham said in Ross, "Reporters must have some freedom to respond to journalistic exigencies without fear that even a slight, and understandable, mistake will subject them to liability. Exuberant judicial blue-penciling after-the-fact would blunt the quills of even the most honorable journalists."[281] The defense of newsworthiness, then, combined with the privileges extended by Cox and Florida Star, make it highly unlikely that a victim of any crime will be successful in seeking remuneration from a news organization for publication of his or her identity.


Rape victims' privacy suits force the courts to balance individual rights and the collective good. The collective good nearly always carries the most weight. Judges are sympathetic to victims' trauma and acknowledge their right to privacy,[282] but judges realize that if they punish the news media for publishing a rape victim's name in one situation, journalists may forego using victims' names even when they are crucial in reporting.[283]

In addition, designating a fact so common as a name as private and its publication beyond the scope of First Amendment protection creates confusion about what is and is not private. If the names of sex-crime victims are private facts, then the names of domestic violence and assault victims may be too. People convicted of alcohol and drug crimes may not want their names in the news. Politicians and celebrities may not want their children's names published or broadcast. Yet these details-these names-may be important to public awareness and understanding of social issues. Rock Hudson's death from AIDS increased public awareness of that deadly virus. Reports of arrests of sports stars for beating their wives and girlfriends have increased awareness of domestic violence. A key principle in journalism is that names are news. By putting a face on a social ill-whether it is crime or poverty-journalists make that problem more relevant to readers and viewers. As Judge Higginbotham explained in Ross v. Midwest Communications, the power in WCCO's story came from presenting the victims and the accused as real people.

The First Amendment exists largely to ensure that important public issues are discussed openly and fully. The courts' decisions in rape victims' privacy suits reflect this principle by protecting the news media as they attempt to create compelling reports about crime, and rape in particular. If the courts were to provide less protection to the publication of truthful facts, they would handicap the press in its attempt to inform the public. If any change in the law is needed, it is a stronger statement from the courts about the First Amendment protection given to the publication of truthful information. The courts' insistence on issuing limited decisions allows rape victims to pursue cases they have little chances of winning and forces news organizations to spend time and money defending truthful and important stories.

Although privacy law pits individuals' needs against the good of the collective, the two may be reconcilable.[284] Some measure of privacy is essential to democracy because it allows individuals to experiment with ideas, develop their opinions, and control fundamental aspects of their lives. Privacy law provides some of these benefits primarily by placing certain aspects of individuals' lives outside the arena of government control, as when the U.S. Supreme Court gave constitutional protection to birth control and abortion.[285] The Court has said the government may not dictate individuals' choices in regard to reproduction. Without this basic measure of privacy, individuals would live in fear of government, unable to restrain a potentially pervasive power in their lives and wary of drawing attention from the powers that be.[286]

However, if rape victims want to protect their privacy, they should do so in a way that does not threaten freedom of the press-a right that benefits society as well as individual news organizations. In a few cases, crime victims and witnesses have been able to recover damages after the press published their names under circumstances that clearly could have placed their lives in danger.[287] The victims and witnesses were successful because they sued for negligence, a tort of general applicability. The First Amendment provides less protection to the media from laws of general applicability, which affect speech only incidentally. For example, the First Amendment does not give newspapers immunity from tax laws-news organizations must pay taxes like any other business.[288]Similarly, the First Amendment will not protect a newspaper from revealing a victim's name to her attacker any more than it will protect police who disseminate her name.[289] Thomas I. Emerson has said individuals and society are best served when they pursue privacy protection through laws of general applicability. "Attempts to safeguard privacy by bottling up expression are bound to be largely futile and probably self-defeating."[290]

Some scholars suggest the right to be let alone may include the right to be free from intrusion into one's home or interference in one's personal relationships, but it does not or should not include "any general right not to be talked about."[291] In a society in which so many aspects of one's life touches the public sphere, and information is readily available, it is natural for citizens to discuss others' lives in a search for ways to deal with difficult issues. By gossiping with their children about the problems of neighbors and celebrities, parents may find ways to deal with their family's troubles in school, health problems or drug use. By discussing how the criminal justice system treated one rape victim, people may develop ideas for reform or become better able to navigate the system themselves.

To protect journalists in their work, then, the courts have constructed and accepted a number of strong defenses against privacy suits. The Supreme Court has given the press near immunity for accurately publishing information obtained from public documents and government proceedings.[292] Information obtained legally from other sources also receives a great deal of protection.[293] And finally, courts will not punish the press for publishing information that is newsworthy, and they nearly always find information about crime-including victimS' names-newsworthy.[294] The one shortcoming in decisions of the Supreme Court and other courts is that the insistence on limiting holdings to the present case facts gives victims the hope that they may eventually present a case in which a compelling state interest in protecting victims' privacy overrides the press' First Amendment rights. The overall pattern in the courts' decisions makes it clear that this situation is unlikely, but relatively few journalists, lawyers or members of the public are familiar with cases other than Cox and Florida Star.

Crime victims may be dissatisfied with the limited protection the law currently gives them and their privacy, but one cannot deny that it is in society's best interests to have the press examine and report openly on crime and the execution of justice. For example, in Ross v. Midwest Communications, a convicted rapist's ability to have his case re-examined depended on the press' ability to make a compelling argument. The court explained, "Communicating that this particular victim was a real person with roots in the community, and showing ... [the television station's] knowledge of the details of the attack upon her, were of unique importance to the credibility and persuasive force of the story."[295] In spite of the founding fathers' best efforts to establish a criminal justice system that respects citizens' civil rights and errs on the side of caution in criminal cases, miscarriages of justice occur. The press must be free to investigate, report and, if necessary, lobby for the righting of wrongs-on behalf of both the victim and the suspect.

1 See Jane Schorer, It Couldn't Happen to Me: One Woman Story, DES MOINES REG. (reprint 1990) (Feb. 25-29, 1990).

2 See Fox Butterfield & Mary B.W. Tabor, Woman in Florida Rape Inquiry Fought Adversity and Sought Acceptance, N.Y. TIMES, Apr. 17, 1991, ar A17.

3 See Naming Names, NEWSWEEK, Apr. 29, 1991, at 26.

4 See Carey Haughwout, Prohibiting Rape Victim Identification in the Media: Is It Constitutional?, 23 U. TOL. L. REV. 735 (1992); Sarah Henderson Hutt, In Praise of Public Access: Why the Government Should Disclose the Identities of Alleged Crime Victims, 41 DUKE L.J. 386 (1991); Kimberly Bacon Wood, Florida Star v. B.J.F.: The Right to Privacy Collides with the First Amendment, 76 IOWA L. REV. 139 (1990); Deborah W. Denno, The Privacy Rights of Rape Victims in the Media and the Law, 61 FORDHAM L. REV. 1113 (1993); Victor Arnell Dubose, The Florida Star-"Happy 200th" to the First Amendment, But a Setting Sun for Victims' Privacy?, 10 MISS. C. L. REV. 193 (1990); Paul Marcus & Tara L. McMahon, Limiting Disclosure of Rape Victims' Identities, 64 S. CAL. L. REV. 1019 (1991); Helen Benedict, Panel Discussion, 61 FORDHAM L. REV. 1141 (1993); Michael Gartner, Panel Discussion, 61 FORDHAM L. REV. 1133 (1993); James Burges Lake, Of Crime and Consequence: Should Newspapers Report Rape Complainants' Names?, 6 J. MASS MEDIA ETHICS 106 (1991); Katha Pollitt, Media Goes Wilding in Palm Beach, in TAKING SIDES: CLASHING VIEWS ON CONTROVERSIAL ISSUES IN MASS MEDIA AND SOCIETY 107 (Alison Alexander & Janice Hanson eds., 1995); Bill Seymour, Reporting Rape: Live TVCoverage Generates a Debate, in POLICE AND THE MEDIA 205 (Patricia A. Kelly ed., 1987); Zena Beth McGlashan, By Reporting the Name, Aren't We Victimizing the Rape Victim Twice?, ASNE BULL., Apr. 1982, at 20; Deni Elliott, Reporting Rape Charges: Treating Victims as Victims, BALT. SUN, Apr. 28, 1991, at D1; Susan Estrich, Press Should Zip Its Lip in Rape Case Identifying Victim, ST. LOUIS POST-DISPATCH, Apr. 22, 1991, at B3; Alex S. Jones, Editors Debate Naming Rape Victims, N.Y. TIMES, Apr. 13, 1991, at A6.

5 Gartner, supra note 4; Geneva Overholser, Why Hide Rapes?, N.Y. TIMES, July 11, 1989, at A19.

6 Benedict, supra note 4; McGlashan, supra note 4; M.K. Guzda, A Right to Privacy ?, EDITOR & PUBLISHER, Mar. 10, 1984, at 7.

7 For example, newspapers in Virginia and Washington that name rape victims continue to deal with criticism, and occasionally boycotts and legal action intended to force them to change their policies. See Michelle Johnson, Protecting Child Sex-Crime Victims: How Public Opinion and Political Expediency Threaten Civil Liberties, 20 SEATTLE U. L. REV. 401 (1997); Dick Haws, Rape Victims: Papers Shouldn't Name Us, AMER. JOURNALISM REV., Sept. 1996, at 12.

8 See When a Columnist Stands Accused, COLUM. JOURNALISM REV., Sept.-Oct. 1997, at 18.

9 See Richard Wexler, The 'Outing' of Kiri Jewell, QUILL, Nov.-Dec. 1995, at 31.

10 See Allan Wolper, Publishing an Alleged Rape Victim's Name, EDITOR & PUBLISHER, July 17, 1993, at 16; Allan Wolper, Publishing a Crime Victim's Name-Part II, EDITOR & PUBLISHER, Oct. 9, 1993, at 16.

11 See Louise Mengelkoch, When Checkbook Journalism Does God's Work, COLUM. JOURNALISM REV., Nov.-Dec. 1994, at 35.

12 See, e.g., Jay Black, Rethinking the Naming of Sex Crime Victims, 16 NEWSPAPER RES. J. 96 (1995).

13 Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989).


15 Doe v. American Broad. Cos., 543 N.Y.S.2d 455 (N.Y. App. Div. 1989); Dorman v. Aiken Communications, 398 S.E.2d 687 (S.C. 1990); Macon Tel. Publ'g Co. v. Tatum, 430 S.E.2d 687 (S.C. 1990); Star-Telegram Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).

16 Hubbard v. Journal Publ'g Co., 368 P.2d 147 (N.M. 1962); Nappier v. Jefferson Standard Life Ins. Co., 322 F.2d 502 (4th Cir. 1963); Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975); Ayers v. Lee Enters. Inc., 561 P.2d 998 (Or. 1977); Poteet v. Roswell Daily Record, 584 P.2d 1310 (N.M. App. 1978); Doe v. Sarasota-Bradenton Fla. Television, 436 So. 2d 328 (Fla. Dist. Ct. App. 1983); Ross v. Midwest Communications, 870 F.2d 271 (5th Cir. 1989).

17 State v. Globe Communications Corp., 648 So. 2d 110 (Fla. 1994).

18 Cox Broad. Corp. v. Colin, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989). But states can-and do-institute laws to keep news organizations from obtaining victims' identities. ALASKA STAT. section12.61.140 (Michie 1995); ARIZ. REV. STAT. ANN. section13-4434 (West 1995); CAL. GOV'T CODES section54961 (West 1995); FLA. STAT. ANN. section92.56 (West 1995); IND. CODE ANN. section35-37-4-12 (Michie 1995); IOWA CODE section 910A. 13 (1995); ME. REV. STAT. ANN. tit. 30-A, section288 (West 1995); MASS. ANN. LAWS ch. 265, section24C (Law. Co-op. 1996); MICH. COMP. LAWS section780.758 (1994); MONT. CODE ANN. section44-5-311 (1995); N.D. CENT. CODE section12.1-35-03 (1995); NEB. REV. STAT. section81-1842 (1995); NEV. REV. STAT. ANN. 98 200.3772-200.3774 (Michie 1995); N.J. REV. STAT. section2A:82-46 (1994); OHIO REV. CODE ANN. section2930.07 (Anderson 1995); R.I. GEN. LAWS section11-37.8.5 (1995); TEX. CODE CRIM. P. ANN. art. 57.02 (West 1996); UTAH CODE ANN. section77-38-6 (1995); VA. CODE ANN. section19.2-11.2 (Michie 1995); WASH. REV. CODE section 42.17.310 (1995); WYO. STAT. ANN. section14-3-106 (Michie 1995).

19 See, e.g., Allied Daily Newspapers v. Eikenberry, 848 P.2d )Wash. 1993; see Johnson, supra note 7.

20 See Bloch v. Ribar, 1998 WK 639169 (6th Cir. 1998); Stephen Hudak, lawsuit Against Ex-Sheriff Revived, PLAIN DEALER (Cleaveland), Sept. 22, 1998, at 1B.

21 In regard to privacy and the news media, the best and most complete history of the creation of the law is DON R. PEMBER, PRIVACY AND THE PRESS (1972). For a relatively brief update on how courts have decided privacy and press cases since the 1970s, see ELLEN ALDERMAN & CAROLINE KENNEDY, THE RIGHT TO PRIVACY 154-222 (1997).

22 See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS section117, at 851 (5th ed. 1984).

23 ALDERMAN & KENNEDY, supra note 21, at 152. See also Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort, 68 CORNELL L. REV. 291 (1983).

24 Credit for creating the right to privacy is usually given to Samuel Warren and future Supreme Court justice Louis Brandeis, who also suggested an exception from liability for news of public interest. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 214 (1890).

25 For writings on freedom of the press of early American libertarians, see FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON (Leonard W. Levy ed., 1966).

26 For an introduction to his theory, see ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (Kennikat Press 1972) (1948).

27 Id.

28 See, e.g., Frederick Schauer, Reflections on the Value of Truth, 41 CASE W. RES. L. REV. 699 (1991); Anita L. Allen, The Power of Private Facts, 41 CASE W. RES. L. REV. 757 (1991); Owen M. Fiss, The Right Kind of Neutrality, in FREEING THE FIRST AMENDMENT 79 (David S. Allen & Robert Jensen eds., 1995).

29 Zimmerman, supra note 23, at 346. In a series of cases, the Supreme Court expanded on Meiklejohn's ideas by extending First Amendment protection to political ads and then even strictly commercial speech. New York Times v. Sullivan, 376 U.S. 254 (1964); Bigelow v. Virginia, 421 U.S. 809 (1975); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

30 The private-facts tort has gained the least acceptance. Ten states-Alaska, Hawaii, Illinois, Minnesota, Montana, Nebraska, North Carolina, North Dakota, Utah and Virginia-still do not recognize it. See DON R. PEMBER, MASS MEDIA LAW 249 (1998).

31 For example, a public opinion poll completed after the death of Great Britain's Princess Diana found 80 percent of Americans thought protecting celebrities' privacy was more important than the public's right to know. CNN/USA TODAY/GALLUP POLL, Sept. 4, 1997 (available from Gallup Organization Research Library, 47 Hulfish St., Suite 200, Princeton, NJ 08542).

32 Alderman and Kennedy credit William Prosser for the growth in private facts suits since the 1960s. ALDERMAN & KENNEDY, supra note 21, at 156. In 1960, Prosser published an article classifying privacy cases into the four torts lawyers and judges now recognize. William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960).

33 Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973). 34 See ALDERMAN & KENNEDY, supra note 21, at 323-24. 35 See Zimmerman, supra note 23, at 293.

36 Costlow v. Cuismano, 311 N.Y.S.2d 92 (N.Y. 1979); Beresky v. Teschner, 381 N.E.2d 979 (ILL. App. Ct. 1978).

37 DeGregario v. CBS, 43 N.Y.S.2d 922 (N.Y. 1984); Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975).

38 Neff v. Time, Inc., 406 F. Supp. 858 (W.D. Pa. 1976); McNamara v. Freedom Newspapers, 802 S.W.2d 901 (Tex. 1991).

39 Zimmerman, supra note 23, at 353. See also PEMBER, supra note 21, at 257 (1996); ALDERMAN & KENNEDY, supra note 21, at 166.

40 Sidis v. F-R Publ'g Co., 113 F.2d 806, 809 (2d Cir. 1940).

41 While the victims' and women's movements have had important influence on the way the media have treated crime victims, many other forces shaped journalists' work, including changes in technology and increased attention to journalistic ethics. For a longer, more detailed examination of these influences, see Michelle Johnson, Using Crime Victims' Names in the News: Journalists' Legal Rights and Ethical Justifications 111-51 (1996) (unpublished Ph.D. dissertation, University of Washington) (on file with the University of Washington Suzzalo Library).


43 Id. at 130.



46 Id. at 7.

47 See Elizabeth M. Koehler, Emergence of a Standard: The Rape Victim Identification Debate Prior to 1970 (1995) (unpublished master's thesis, University of Washington).

48 Id.

49 See, e.g., John Leo, What Crime Does to the Victims, TIME, Mar. 23, 1981, at 29-30.

50 See, e.g., People v. Colon and Cardona, N.Y.L.J., June 30, 1992 at 21 (N.Y. Sup. Ct. 1992) (ruling that videotape of rape of teen-aged girl may not be released to news media).

51 At least 12 states have laws that make records identifying sex-crime victims confidential and exempt from public disclosure laws. ALASKA STAT. section12.61.140 (Michie 1995); CAL. GOV'T CODES section54961 (West 1995); FLA. STAT. ANN. section92.56 (West 1995); MASS. ANN. LAWS ch. 265, section24C (Law. Co-op. 1996); MONT. CODE ANN. section 44-5-311 (1995); NEB. REV. STAT. section81-1842 (1995); NEV. REV. STAT. ANN. sections200.3772-200.3774 (Michie 1995); TEX. CODE CRIM. P. ANN. art. 57.02 (1996). In some states, such as Florida and Texas, all records, including court documents and testimony, are covered. FLA. STAT. ANN. section92.56 (West 1995). In others, the law protects sex-crime victims' identities from disclosure only in certain documents or until testimony is given at trial. CAL. GOV'T CODES section54961 (West 1995); MASS. ANN. LAWS ch. 265, section24C (Law. Co-op. 1996); NEB. REV. STAT. section81-1842 (1995). Four states protect the identities of child sexual-assault victims. IOWA CODE section910A.13 (1995); ME. REV. STAT. ANN. tit. 30-A section288 (West 1995); N.J. REV. STAT. section2A:82-46 (1994); R.I. GEN. LAWS section11-37.8.5 (1995). North Dakota protects the identities of child victims of all crimes. N.D. CENT. CODE section12.1-35-03 (1995). Victims of crimes other than sexual assault generally receive less protection for their privacy. Ten states have laws that permit law-enforcement officials to delete crime victims' addresses and phone numbers from law-enforcement records. However, victims usually are required to give their names in court testimony if not earlier in the legal process. ALASKA STAT. section 12.61.130 (Michie 1995); ARIZ. REV. STAT. ANN. section13-4434 (1995); IND. CODE ANN. section 35-37-4-12 (Michie 1995); MICH. COMP. LAWS section780.758 (1994); MONT. CODE ANN. section 44-5-311 (1995); OHIO REV. CODE ANN. section2930.07 (Anderson 1995); UTAH CODE ANN. section77-38-6 (1995); VA. CODE ANN. section19.2-11.2 (Michie 1995); WASH. REV. CODE section 42.17.310 (1995); WYO. STAT. ANN. section14-3-106 (1995).

52 GA. CODE ANN. section16-6-23 (Harrison 1995); FLA. STAT. ANN. section794.03 (West 1995); S.C. CODE ANN. section16-3-730 (Law. Co-op. 1993).

53 WIS. STAT. ANN. section942.02 (West 1958) (repealed 1975).

54 Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975).

55 State v. Globe Communications Corp., 622 So. 2d 1066 (Fla. Dist. Ct. App. 1993).

56 In addition, Florida passed a law in 1995 that gives sex-crime victims the means to sue those who disclose their identities before trial. Such a suit might be hard to win, however, because the statute requires a plaintiff to prove the person who disclosed the victim's identity did so with "reckless disregard for the highly offensive nature of the publication." FLA. STAT. ANN. section794.026 (West 1995). No reported cases address this statute.

57 State v. Evjue, 33 N.W.2d 305 (Wis. 1948); State v. Globe Communications Corp., 648 So. 2d 110 (Fla. 1994).

58 See Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989).

59 33 N.W.2d 305.

60 WIS. STAT. ANN. section942.02 (West 1958) (repealed 1975).

61 For a history of Evjue, see Kim E. Karloff, To Know Her Name: Wisconsin v. Evjue and the Origins of the Rape Victim Identification Debate (Aug. 10-13, 1994) (paper presented to the Association for Education in Journalism and Mass Communication's Commission on the Status of Women, Atlanta).

62 Id. at 9-10.

63 Id. at 11.

64 Id. at 12.

65 Id. at 13.

66 Id. at 14-15.

67 State v. Evjue, 38 N.W.2d 305, 306 (Wis. 1948).

68 Id. at 306-07.

69 Id. at 312.

70 Id. at 311. The clear and present danger test the justice relied on was replaced by a requirement of an incitement to violence in Brandenburg v. Ohio, 395 U.S. 444 (1969).

71 State v. Evjue, 33 N.W.2d at 311.

72 E.g., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

73 The Wisconsin court made several direct references to the U.S. Supreme Court's decision in Chaplinsky. State v. Evjue, 33 N.W.2d at 311-312.

74 Id. at 312.

75 See Karloff, supra note 61, at 16.

76 See id. at 17.

77 Nappier v. Jefferson Standard Life Ins. Co., 322 F.2d 502 (4th Cir. 1963); Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989); Dorman v. Aiken Communications, Inc., 398 S.E.2d 687 (S.C. 1990).

78 State v. Globe Communications Corp., 648 So. 2d 110 (Fla. 1994).

79 See Woman Alleges Sex Assault at Kennedy Estate, WASH. POST, Apr. 2, 1991, at A6; Roberto Suro, Woman Says She Was Raped at Kennedy Estate, N.Y. TIMES, Apr. 3, 1991, at A12.

80 Id.

81 See Laura Parker, Police Say Little of Alleged Attack at Kennedy Home, WASH. POST, Apr. 3, 1991, at A16; Roberto Suro, Rape Investigation Continues at Kennedy Estate, N.Y. TIMES, Apr. 4, 1991, at A17; John E. Yang & Laura Parker, Kennedy Nephew's Statement Seeks to Stem 'Unwarrented Speculation,' WASH. POST, Apr. 4, 1991, at A3.

82 See, e.g., Roberto Suro, Kennedy's Nephew Is Identified as Rape Suspect, N.Y. TIMES, Apr. 5, 1991, at A13.

83 Yang & Parker, supra note 81, at A3.

84 See Alex S. Jones, Editors Debate Naming Rape Victims, N.Y. TIMES, Apr. 13, 1991, at A6; Crossfire, CNN, Apr. 11, 1991, in scripts library, available in LEXIS, NEXIS Library, Transcript No. 287.

85 See On Names in Rape Cases, N.Y. TIMES, Apr. 17, 1991, at A17; Jones, supra note 84, at A6.

86 The first Globe issue to name Bowman was dated Apr. 23, 1991. However, it appeared on newstands on Apr. 15, the day before NBC News named the woman in a story about the debate on naming rape victims. See State v. Globe Communications Corp., 622 So. 2d 1066, 1068 (Fla. Dist. Ct. App. 1993). On Apr. 16, NBC News named Bowman in a story about the debate on naming rape victims. The next day, the New York Times ran a profile of Bowman in which it u@d her name. Butterfield & Tabor, supra note 2, at A17.

87 See Globe Charged for Identifying Alleged Victim, NEWS MEDIA & L., Summer 1991, at 24, 25.

88 Id.; FLA. STAT. ANN. section794.03 (West 1987). 89 See State v. Globe Communications Corp., 622 So. 2d at 1072. The unreported opinion of the trial court was reprinted in full in the opinion of the Florida District Court of Appeal.

90 Id. (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Gardner v. Bradenton Herald, Inc., 413 So. 2d 10 (Fla. 1982); Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)).

91 State v. Globe Communications Corp., 622 So. 2d at 1071-72.

92 Id. (citing Florida Star v. B.J.F., 491 U.S. 524, 539-41 (1989)).

93 State v. Globe Communications, 622 So. 2d at 1074.

94 Id. at 1075-76.

95 Id. The state's appeal was a bit unusual. It conceded the law might be unconstitutional as applied to the Globe in this case, but Florida contended that the statute was not unconstitutional on its face and should not be invalidated. Id. at 1067.

96 State v. Globe Communications, 648 So. 2d 110, 111 (Fla. 1994).

97 491 U.S. 524 (1989).

98 State v. Globe Communications, 648 So. 2d at 111.

99 Id.

100 Id. at 113.

101 Id.

102 Id. at 114.

103 STAT. ANN. section794.03 (West 1995).

104 See State v. Globe Communications, 648 So. 2d at 114; Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491 (1975).

105 State v. Globe Communications, 622 So. 2d at 1079 (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 610 (1982)).

106 Cox Broad. Corp. v. Cohn, 420 U.S. at 496.

107 FLA. STAT. ANN. section794.03 (West 1989).

108 See State v. Globe Communications, 648 So. 2d at 112-13; Florida Star v. B.J.F., 491 U.S. 524, 525 (1989).

109 See PEMBER, supra note 21, at 238-40.

110 See State v. Globe Communications, 648 So. 2d at 112-13.

111 See the historical notes to FLA. STAT. ANN. section794.03 (West 1995).

112 See 2 Arrested for Naming Rape Victim, NEWS MEDIA & L., Summer 1992, at 26.

113 33 N.W.2d 305 (Wis. 1948).

114 Jones v. Herald Post Co., 18 S.W.2d 972 (Ky. 1929); Mau v. Rio Grande Oil, Inc., 28 F. Supp. 845 (N.D. Cal. 1939).

115 Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989).

116 648 So. 2d 110 (Fla. 1994).

117 322 F.2d 502 (4th Cir. 1963).

118 Id. at 503.

119 Id.

120 Id. at 503-04.

121 Id. at 502.

122 Id. at 504.

123 Id.

124 Id. at 505.

125. Id.

126 See PEMBER, supra note 21, at 188-209.

127 The decision reflects Meiklejohnian theory. See Meiklejohn, supra note 26.

128 420 U.S. 469 (1975).

129 See The Right to PrIvacy, NEWSWEEK, Mar. 17, 1975, at 66.

130 Id.

131 Cox Broad. Corp. v. Cohn, 420 U.S. at 471.

132 See Right to Privacy, supra note 129, at 66.

133 Cox Broad. Corp. v. Cohn, 420 U.S. at 472-74.

134 Id. at. 472.

135 Id.

136 See Right to Privacy, supra note 129, at 66.

137 Id.

138 GA. CODE ANN. section26-9901 (Harrison 1972).

139 Cox Broad. Corp. v. Cohn, 420 U.S. at 474.

140 Id.

141 Cox Broad. v. Cohn, 200 S.E.2d 127, 129 (Ga. 1973).

142 Id.

143 Id. at 130. Georgia was the first state to recognize a common law right of privacy. Pavesich v. New England Mut. Life Ins. Co., 122 Ga. 190 (1905); see also PEMBER, supra note 21, at 70-73.

144 See PEMBER, supra note 30, at 249-64; PEMBER, supra note 21, at 238-43.

145 While noting that the concept of relational privacy was not generally accepted, the Georgia Supreme Court referred to a Georgia case that recognized a relational privacy interest to justify its decision. Cox Broad. v. Cohn, 200 S.E.2d at 130, citing Bazemore v. Savannah Hosp., 155 S.E. 194 (Ga. 1930).

146 Id. at 130-31.

147 Id. at 133-34.

148 See PEMBER, supra note 30, at 240, 247-52; PEMBER, supra note 21, at 239-40.

149 Cox Broad. v. Cohn, 200 S.E.2d at 134.

150 483 P.2d 34 (Cal. 1971).

151 Id. at 36.

152 Id.

153 Id. at 38-39.

154 Id. at 40.

155 Id. at 43. Briscoe's case was moved from the state trial court to the U.S. District Court for the Central District of California, where the judge granted Reader's Digest's motion for summary judgment. See HAROLD L. NELSON & DWIGHT L. TEETER, JR, LAW OF MASS COMMUNICATIONS 199 (2d ed. 1973); Don R. Pember & Dwight L. Teeter, Jr., Privacy and the Press Since Time, Inc. v. Hill, 50 WASH. L. REV. 57, 88 (1974).

156 Hunter v. Washington Post, 102 DAILY WASH. L. REP. 1561 (D.C. Super. Ct. 1974).

157 Id. at 1567.

158 Cox Broad. Corp. v. Cohn, 420 U.S. 469, 473, 475 (1975).

159 Id. at 489.

160 See New York Times v. Sullivan, 376 U.S. 254 (1964); Time, Inc. v. Hill, 385 U.S. 374 (1967).

161 Cox Broad. Corp. v. Cohn, 420 U.S. at 491.

162 Id. at 496.

163 Id.

164 Id. at 492.

165 Id. at 493-95.

166 Id. at 495-96.

167 Id. at 496.

168 Id.

169 ALASKA STAT. section 12.61.140 (Michie 1995); ARIZ. REV. STAT. ANN. section13-4434 (West 1995); CAL. GOV'T CODES section54961 (West 1995); FLA. STAT. ANN. section92.56 (West 1995); IND. CODE ANN. section35-37-4-12 (Michie 1995); IOWA CODE 9 910A. 13 (1995); ME. REV. STAT. ANN. tit. 30-A, section288 (West 1995); MASS. ANN. LAWS ch. 265, section 24C (Law. Co-op. 1996); MICH. COMP. LAWS section780.758 (1994); MONT. CODE ANN. section44-5-311 (1995); N.D. CENT. CODE section 12.1-35-03 (1995); NEB. REV. STAT. section81-1842 (1995); NEV. REV. STAT. ANN. section 200.3772-200.3774 (Michie 1995); N.J. REV. STAT. section2A:82-46 (1994); OHIO REV. CODE ANN. section2930.07 (Anderson 1995); R.I. GEN. LAWS section11-37.8.5 (1995); TEX. CODE CRIM. P. ANN. art. 57.02 (West 1996); UTAH CODE ANN. section77-38-6 (1995); VA. CODE ANN. section19.2-11.2 (Michie 1995); WASH. REV. CODE section42.17.310 (1995); WYO. STAT. ANN. section14-3-106 (Michie 1995).

170 The first reported failure of state employees to keep a rape victim's name private after promising to do so was in Doe v. Sarasota-Bradenton Fla. Television, 436 So. 2d 328 (Fla. Dist. Ct. App. 1983). This case is not reviewed in detail here because it neither created nor modified a legal standard. As in Cox, the television station obtained a rape victim's name from trial testimony. A Florida court of appeals affirmed the trial judge's dismissal of the case, using the same rationale as that provided in the Cox decision. Id.

171 Florida Star v. B.J.F., 491 U.S. 524 (1989).

172 Id. at 527.

173 Id.

174 Id. at 528.

175 Fla. Star. Ann. 794.03 (West 1987).

176 Florida Star v. B.J.F., 491 U.S. at 528.

177 Id. at 528-29.

178 Id. at 529.

179 Florida Star v. B.J.F., 499 So. 2d 883 (Fla. Dist. Ct. App. 1986).

180 Florida Star v. B.J.F., 491 U.S. at 529.

181 Id. at 530-41.

182 Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975).

183 Oklahoma Publ'g Co. v. Oklahoma County Dist. Court, 430 U.S. 308 (1977); Smith v. Daily Mail Publ'g Co., 443 U.S. 97 (1979).

184 Florida Star v. B.J.F., 491 U.S. at 532.

185 Id.

186 Id.

187 Smith v. Daily Mail Publ'g Co., 443 U.S. 97 (1979).

188 Florida Star v. B.J.F., 491 U.S. at 533, quoting Smith v. Daily Mail, 443 U.S. at 103.

189 Florida Star v. B.J.F., 491 U.S. at 536.

190 Id. at 534. 191 Id. at 537. 192 Id. at 535.

193 Id. at 535-41.

194 Id. at 536.

195 Id.

196 Dorman v. Aiken Communications, Inc., 398 S.E.2d 687 (S.C. 1990).

197 Id. at 688.

198 Id.

199 Id.; see Rape Victim Can Claim Privacy Invasion,' Can't Use Statute, NEWS MEDIA & L., Winter 1991, at 27.

200 Dorman v. Aiken Communications, 398 S.E.2d at 688.

201 Id.

202 S.C. CODE ANN. section16-3-730 (1985).

203 Dorman v. Aiken Communications, 398 S.E.2d at 688.

2O4 Id.

205 Id. at 689.

206 Id.

207 436 S.E.2d 655 (Ga. 1993).

208 In 1990, the Georgia Court of Appeals recognized a crime victim's right to bring a common-law cause of action for invasion of privacy. In that case, a high school student was attacked by a group of students during a school activity. He and his parents sued a local newspaper after it named him in a series of articles about the incident. While the court of appeals recognized the boy's common law right of privacy, it ruled in favor of the newspaper because the crime was of public interest. Tucker v. News Publ'g Co., 397 S.E.2d 499 (Ga. Ct. App. 1990). The case facts in the Tucker decision do not make it clear whether the boy was sexually assaulted The Georgia Supreme Court's opinion in Macon Telegraph says he was. Macon Tel. Publ'g v. Tatum, 436 S.E.2d 655, 657. The Tucker decision is brief and makes no reference to Georgia's criminal statute prohibiting the publication of sexual-assault victims' identities. Tucker is not detailed in this paper because Macon Telegraph addresses the same issues and explains the differences between the common-law and statutory causes of action.

209 Macon Tel. Publ'g v. Tatum, 430 S.E.2d 18, 20 (Ga. Ct. App. 1993).

210 See Georgia High Court Dismisses Privacy Suit, NEWS MEDIA & L., Winter 1994, at 31; Macon Tel. Publ'g v. Tatum, 436 S.E.2d at 657.

211 Id.

212 Id. The award was $30,000 in compensatory damages and $70,000 in punitive damages. Id.

213 Macon Tel. Publ'g Co. v. Tatum, 430 S.E.2d 18 (Ga. Ct. App. 1993).

214 Id. at 21.

215 Id. at 22.

216 Id.

217 Id. at 21-24.

218 Macon Tel. Publ'g v. Tatum, 436 S.E.2d 655 (Ga. 1993).

219 Id. at 657.

220 Florida Star v. B.J.F., 491 U.S. 524, 533 (1989).

221 Macon Tel. Publ'g v. Tatum, 436 S.E.2d at 657.

222 Id. at 658.

223 Id.

224 See Hubbard v. Journal Publ'g Co., 368 P.2d 147 (N.M. 1962); Ayers v. Lee Enters. Inc., 561 P.2d 998 (Or. 1977); Poteet v. Roswell Daily Record, Inc., 584 P.2d 1310 (N.M. Ct. App. 1978); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).

225 See PEMBER, supra note 21, at 250.

226 Hubbard v. Journal Publ'g, 368 P.2d at 147.

227 Id.

228 Id.

229 This was the first privacy case heard in New Mexico. Hence, no statutory or common law right of privacy had been recognized yet by the state courts. See PEMBER, supra note 21, at 258, 265. See also Hubbard v. Journal Publ'g, 368 P.2d at 147-48.

230 Hubbard v. Journal Publ'g, 368 P.2d at 147.

231 Id.

232 N.M. STAT. ANN. section13-8-66 (Michie 1953).

233 Hubbard v. Journal Publ'g, 368 P.2d at 147-48 (quoting Warren & Brandeis, supra note 24, at 216).

234 Id. at 148.

235 See RESTATEMENT (SECOND) OF TORTS section611 (1977).

236 Hubbard v. Journal Publ'g, 368 P.2d at 148.

237 See Prosser, supra note 23.

238 Hubbard v. Journal Publ'g, 368 P.2d at 148-49.

239 S.C. CODE ANN. section16-3-730 (1985); GA. CODE ANN. section26-9901 (Harrison 1972).

240 561 P.2d 998 (Or. 1977).

241 Id. at 998-99.

242 Id. at 999.

243 Id, at 999-1000 citing OR. REV. CODE section192.010 (1973). As a secondary source, Ayers referred to an exemption for personal information such as that included in medical, personnel and similar files. Id.

244 Id. at 1002.

245 Id., citing Cox Broad. v. Cohn, 420 U.S. at 493-94.

246 584 P.2d 1310 (N.M. 1978).

247 Id. at 1311.

248 Id. at 1310-11.

249 Id. at 1311-12.

250 Id. at 1312.

251 Black's Law Dictionary defines promissory estoppel as that which arises when there is a promise which promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of promisee, and which does induce such action or forbearance, and such promise is binding if injustice can be avoided only by enforcement of promise.

252 Poteet v. Roswell Daily Record, 584 P.2d at 1312-13.

253 Id.

254 Id. at 1313.

255 Id. at 1312.

256 Ross v. Midwest Communications, Inc., 870 F.2d 271 (5th Cir. 1989).

257 See Jones v. Herald Post Co., 18 S.W.2d 972 (Ky. Ct. App. 1929); Hubbard v. Journal Publ'g Co., 368 P.2d 147 (N.M. 1962); Poteet v. Roswell Daily Record, 584 P.2d 1310; Doe v. American Broad. Cos., 543 N.Y.S.2d 455 (N.Y. App. Div. 1989); Dorman v. Aiken Communications, Inc., 398 S.E.2d 687 (S.C. 1990); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).

258 Ross v. Midwest Communications, 870 F.2d at 274-75.

259 Id. at 271.

260 Id. at 271-72.

261 Id. at 272.

262 Id.

263 Id.

264 Id. at 272-75.

265 Id. at 274.

266 Id. at 274-75.

267 Id. at 274.

268 Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).

269 Id. at 476.

270 Id. at 472.

271 Id,

272 Id. at 472, 475-76.

273 Id. at 472-73.

274 Id. at 473.

275 Id.

276 Id.

277 Id.

278 Id. at 474.

279 Id. at 474-75.

280 Warren & Brandeis, supra note 24, at 214; Hubbard v. Journal Publ'g Co., 368 P.2d 147 (N.M. 1962); Ayers v. Lee Enters., Inc., 561 P.2d 998 (Or. 1977); Poteet v. Roswell Daily Record, Inc., 584 P.2d 1310 (N.M. Ct. App. 1978); Ross v. Midwest Communications, Inc., 870 F.2d 271 (5th Cir. 1989); Star-Telegram v. Doe, 915 S.W.2d 471.

281 Ross v. Midwest Communications, Inc., 870 F.2d at 275.

282 See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 489 (1975); Florida Star v. B.J.F., 491 U.S. 524. 530 (1989).

283 See id.


285 Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).

286 See EMERSON, supra note 284, at 545.

287 Hyde v. City of Columbia, 637 S.W.2d 251 (Mo. Ct. App. 1982); Times Mirror Co. v. Superior Court, 244 Cal. Rptr. 556 (Cal. Ct. App. 1988).

288 See City of Corona v. Corona Daily Indep., 252 P.2d 56 (Cal. Ct. App. 1953); Grosjean v. American Press Co., 297 U.S. 233 (1936).

289 See Times Mirror Co. v. Superior Court, 244 Cal. Rptr. at 561; Hyde v. City of Columbia, 637 S.W.2d at 263.

290 EMERSON, supra note 284, at 548.

291 Id. at 556. See also Zimmerman, supra note 14, at 362-65.

292 Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975).

293 See Florida Star v. B.J.F., 491 U.S. 524 (1989).

294 See Hubbard v. Journal Publ'g Co., 368 P.2d 147 (N.M. 1962); Ayers v. Lee Enters. Inc., 561 P.2d 998 (Or. 1977); Poteet v. Roswell Daily Record, Inc., 584 P.2d 1310 (N.M. Ct. App. 1978); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).

295 Ross v. Midwest Communications, Inc., 870 F.2d 271, 274 (5th Cir. 1989).


By Michelle Johnson

Assistant Professor, Department of Communication, Westfield State College

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Source: Communication Law & Policy, Spring99, Vol. 4 Issue 2, p201, 42p.
Item Number: 3349352