Content Regulation / Censorship, Press Freedom, Privacy, Data Protection and Retention
AMM v. News Group Newspapers
Closed Expands Expression
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The Supreme Court of the United States held the Georgia Statute unconstitutional for making the publication of a deceased rape victim’s name a misdemeanour offence. A reporter for the Cox Broadcasting Television Network broadcasted the name of a deceased rape victim while reporting the judicial trial of the incident. The father of the deceased, Cohn, brought damages action against the Cox Broadcasting Television Network claiming violation of his daughter’s right to privacy under the Georgia Statute that stipulated the publication or broadcasting of the name or identity of a rape victim as a misdemeanor offence. The Supreme Court of the United States reversed the Georgia Supreme Court decision and observed that the commission of a crime and judicial proceedings arising from the prosecutions were events of legitimate concern to the public and fell within the press’s responsibility to report the operations of government. It observed that the identity of the rape victim was lawfully obtained from publicly available judicial records. The Court further reasoned that restricting freedom of the press in this backdrop would be against the public interest and in violation of the Constitution. It observed, that the interest in privacy faded as the published information had already appeared on the public record.
In August 1971, Martin Cohn’s 17-year-old daughter was raped and couldn’t survive the incident. Despite substantial press coverage of the trial, the victim’s identity was not disclosed. The Georgia Statute penalised the publication or broadcast of the name/identity of a rape victim. During the trial, five out of six juveniles pleaded guilty to rape. The Court accepted the guilty pleading of the five juveniles and continued the trial of the defendant who pleaded not guilty. During one of the proceedings, Wassell, a reporter learned the victim’s identity from examining the indictments made available for his inspection in the courtroom. Wassell broadcasted the name of a deceased rape victim while reporting the trial of the incident for WSB-TV, a television station owned by appellant Cox Broadcasting Corp.
This case began when Cohn (the Appellee) brought an action for damages against the Cox Broadcasting Corp and Wassell (the Applicants) before the Georgia Court. The Appellee relied on the Georgia Statute and claimed that his right to privacy was violated by the Applicant’s broadcasting of his deceased daughter’s identity. The Appellants admitted to the broadcast, however, claimed that they were protected under the State law and the First and Fourteenth Amendments. The Trial Court rejected the Appellant’s constitutional claims; upheld the Georgia Statute and reasoned that the Georgia Statute gave a civil remedy to those injured by its violation. The Appellant appealed to the Georgia Supreme Court challenging the trial court’s orders on the First, and Fourteenth Amendments.
The Georgia Supreme Court observed that the trial court had erred in interpreting Georgia Statute to extend a civil cause of action for invasion of privacy and therefore the Court found it unnecessary to consider the constitutionality of the Georgia Statute. After retrial and on a motion for rehearing on whether disclosure of the victim’s name was privileged as a matter of public interest, the Georgia Supreme Court observed that the Georgia Statute was a declaration of policy by the legislature that a rape victim’s identity was not a matter of public interest. Thus, the Georgia Supreme Court upheld the constitutionality of the Georgia Statute as a legitimate limitation on the right of freedom of expression. Thereafter, the Appellants appealed to the US Supreme Court.
The Court delivered the unanimous decision finding that the Georgia Statute violated the Constitution. The Court gave four opinions. Justice Bryon White delivered the majority opinion that was supported by Justice Brennan, Justice Stewart, Justice Marshall, and Justice Blackmun. Justice Burger joined Justice Powell in his concurring opinion. Justice Douglas gave another concurring opinion and Justice Rehnquist gave a dissenting opinion.
The central issues for the Court were to determine whether a state criminal law could reprimand the media/press for invasion of privacy caused due to the publication of the identity of a rape victim that had been obtained from publicly available judicial records and whether such law was consistent with the First and Fourteenth Amendments.
First, the Court held that it has jurisdiction to review the judgment of the Georgia Supreme Court rejecting the challenge under the First and Fourteenth. The Court recognised the fact that privacy jurisprudence had been developing in Georgia since 1905 when the Georgia Supreme Court delivered Pavesich v. New England Life (1905). Georgia laws acknowledged the existence of a zone of privacy surrounding individuals, within which the State may protect them from intrusion by the press. The Court observed that there were impressive credentials for a right to privacy, however, the version of the privacy tort in question before the Court is the tort of public disclosure. The Court stated that the claim made by the Appellee was regarding his right to be free from unwanted publicity about one’s private affairs. It noted the tension between the privacy of the person and the constitutional freedoms of the press, because the publication, although true, would be “offensive to a person of ordinary sensibilities” [p. 489].
The Court observed that the Appellant’s claim on the broad holding that the press could not be made criminally or civilly liable for publishing information that was neither false nor misleading but absolutely accurate, regardless of how damaging it could be to reputation or individual sensibilities. [p. 490]. The Court relied on New York Times Co. v. Sullivan(1964), Garrison v. Louisiana (1964), and Curtis Publishing Co. v. Butts (1967) to hold that defense of truth is constitutionally required where the subject of the publication was a public official or public figure.
The Court accepted the established principle that truth was a defence in defamation actions, where the protected interest was personal reputation. Relying on Time Inc. vs. Hill (1967), the Court laid down a test for situations where privacy was claimed as a right to be free from the publication of false/misleading information about one’s affairs. In case the information published was considered public interest, the subject of the publication must establish a knowing or reckless falsehood.
The Court clarified that while in the case of Garrison, it had determined that the interest in the private reputation involving a public official was overborne by the larger public interest. However, considering Time, the Court recognised that it had left an important question unattended. This was concerning the issue of whether truth could be recognised as a defence in a defamation action brought by a private person under the First and Fourteenth Amendments. [Pg. 491]
The Court observed that the clashing interests on both claims of privacy and those of the free press were well rooted in society’s traditions and presented significant concerns. The Court stated that instead of addressing the broader question of whether truthful publications could be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments, it was appropriate to determine whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records which were maintained in connection with a public prosecution and were open to public inspection [p. 491]. The Court, in its majority opinion, held that the State may not reprimand the media for invasion of privacy caused by the accurate publication of a rape victim’s name. This was because the information published was obtained from the judicial records accessible to the public at large. This was held in the light of rights and freedoms emanating from the First and Fourteenth Amendments.
The Court observed that in society every individual has but limited time and resources to observe at first hand the operations of his government, thus they rely necessarily upon the press to bring to them in convenient form the facts of those operations. The Court stressed upon the greater obligation that was placed on the media to report fully and accurately the government’s proceedings and official records and documents open to the public. The Court relied on Sheppard v. Maxwell(1966) to stress the function of the press i.e., to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. The Court deemed that while in the present case, the appellee claimed the press had infringed his right to privacy by broadcasting his daughter’s identity as a rape victim, however, it observed that the events related to the commission of crimes, the prosecutions resulting therefrom, and the associated judicial proceedings were held to be events of legitimate concern to the public. Consequently, they fell within the press’ responsibility to report the operations of the government [pg. 492].
The Court relied on Justice Douglas’s observation in Craig v. Harney(1947), Estes v. Texas(1965), Pennekamp v. Florida(1946), and Bridges v. California(1941) to observe that a “trial is a public event”, and what transpires in the courtroom becomes “public property”. Subsequently, “if a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt.” Further the Court referred to Restatement of the Law, Second, Torts, § 652 to hold that, the prevailing law of invasion of privacy recognizes that the interests in privacy fade when the information involved already appears on the public record [p. 494].
The Court further observed that by placing the information in the public domain on official court records, the State presumed to serve the public interest. Thus, it held that in preserving that form of government, the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection [p. 495]. The Court held that forbidding the media from publishing public records when their content could be offensive to the sensibilities of a supposed individual would make it very difficult for the press to inform citizens and, at the same time, stay within the law. Such a rule, the Court pointed out, “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” [p.496].
The Court said that when privacy interests were at play in judicial proceedings, States must avoid public documentation and exposure of private information. State’s political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. The Court reiterated the rationale of Miami Herald Publishing Co. v. Tornillo(1974), to observe that “once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it”.
Justice White in the majority opinion found that the protection of freedom of the press provided by the First and Fourteenth Amendments barred the State of Georgia from making appellants’ broadcasts the basis of civil liability.
Justice Powell wrote separately to concur, joining the majority opinion of the Court but adding that he differs in his reasoning from the majority opinion on the role of truth in defamation actions brought by private citizens. Justice Powell observed that the constitutional necessity of recognizing a defense of truth is equally implicit in the statement of the permissible standard of liability for the publication or broadcast of defamatory statements whose substance makes apparent the substantial danger of injury to the reputation of a private citizen [p. 497-498].
Justice Powell relied on Gertz v. Robert Welch(1974) to observe that the rationale of Gertz resolves the conflict between the State’s desire to protect the reputational interests of its citizens and the competing commands of the First Amendment. In Gertz, the Court recognised the need to establish a broad rule of general applicability, acknowledging that such an approach necessarily requires treating alike cases that involve differences as well as similarities.
In Justice Powell’s opinion, the rule established in the case of Gertz permitted states to impose a standard other than a strict liability in defamation actions by private persons and supplanted the New York Times Co. v. Sullivan(1964) criteria rule of knowing falsehood or reckless disregard for the truth as applied to private individuals and necessarily implied that truth be recognized as a complete defense.
Observing that the “rule of law is not infinitely elastic”, Justice Powell observed that in some instances State actions that were denominated actions in defamation may in fact seek to protect citizens from injuries that were quite different from the wrongful damage to reputation flowing from false statements of fact. Thus, in such scenarios, the Constitution may permit a different balance to be struck. Subsequently, the causes of action grounded in a State’s desire to protect privacy generally implicate interests that were distinct from those protected by defamation actions.
Justice William Douglas wrote separately to concur, joining the opinion of the Court. He emphasized that, as stated in his dissenting opinion in the case of New Jersey State Lottery Commission v. United States(1975), there is no power on the part of the government to suppress or penalize the publication of “news of the day”.
Justice William Rehnquist wrote a dissenting opinion, chiefly on jurisdictional grounds that the decision which is the subject of this appeal before the Supreme Court is not a “final” judgment or decree.
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Through this decision, the Supreme Court expanded the scope of the right to freedom of expression by holding that the interests of privacy fade when the information is already available on public record.
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