Petition — Bridges v. Cape Publications, Inc.

> 2 _ > Ae viiCe-ouprome Vourt, Ud,

2% | FILED

AUG 10 1983

ALEXANDER L. STEVAS,

CLERK

ee eee

NO.

in the

Supreme Court

of the

United States

OCTOBER TERM 1983

HILDA BRIDGES.

Petitioner,

vs.

CAPE PUBLICATIONS, INC.,

and SCOTT MACLAY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA, FIFTH DISTRICT

JOAN H. BICKERSTAFF

1811 South Riverview Drive

Melbourne, Florida 32901

(305) 723-1009

and

JAMES H. NANCE

of NANCE, CACCIATORE &

SISSERSON, P.A.

525 North Harbor City Boulevard

Melbourne, Florida 32935

(305) 254-8416

Attorneys for Petitioner

I.

QUESTION PRESENTED FOR REVIEW

WHETHER THE FIRST AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION PROHIBIT A PRIVATE

INDIVIDUAL, INVOLUNTARILY INVOLVED

IN A NEWSWORTHY EVENT, FROM

MAINTAINING A CAUSE OF ACTION

AGAINST A MEDIA DEFENDANT FOR

INVASION OF HER RIGHT OF PRIVACY

THROUGH PUBLICATION OF LURID,

THOUGH TRUTHFUL, PHOTOGRAPHS.

Il.

INTRODUCTION AND LISTING OF PARTIES

Petitioner, HILDA BRIDGES, was the appellee/cross-

appellant in the court below and plaintiff in the trial

court. Respondents, CAPE PUBLICATIONS, INC., and

SCOTT MACLAY, were appellants/cross-appellees in

the lower court and defendants in the trial court.

In this Petition for Writ of Certiorari, the parties

shall be referred to as Petitioner and Respondents and,

in the alternative, by name. References to the required

Appendix which accompanies this petition shall be

preceded by the symbol “A.” Unless otherwise indicated,

all emphasis has been supplied by counsel.

TABLE OF CONTENTS

Question Presented for Review ...........

Introduction and Listing of Parties.........

Tale Of Authorities... cc cccce ses ce ess

Reference to Opinion ....................

Jurisdictional Statement .................

Relevant Constitutional Provisions ........

Statement of the CaseandFacts...........

Reasons for Granting the Writ —

Arms TRING ios eee ica

TEE TET STOTT Ee er ce

Certiteate of Gerviee .......csciscclckun

Page

TABLE OF AUTHORITIES

CASES Page

Cason v. Baskin,

20 0.26 S43 (ila. 1044)... ec ceca 13

Cox Broadcasting Corp. v. Cohn,

Cg 0 ee 9,10, 11, 12

Greenbelt Cooperative Pub. Assoc. v. Bresler,

DU MN MMI og i oe few nue ane tomes 8,9

Jacova v. Southern Radio and Television Co.,

Be ee Oe Oc I ok vvccc x vnksdeccsceas 13

Time, Inc. v. Hill,

ek ee 7,8

United States v. O'Brien,

ee a I Sc cd cada deunedae 12

CONSTITUTIONAL PROVISIONS

oe ae eee 2, 7,9, 12

ee PN 5 ia sh. S piv kuin on 0 apse Os 2

RC II, Woo 556 viv bce sev bes wee we ees 2,3

CF Re) ere 2,3

U.S. Const. amend. XIV,§1......... 2,3, 7,9, 12

I 6 6cc as ye res sncesevekeuyes 13

TABLE OF AUTHORITIES (Continued)

STATUTES Page

ey 1

RULES OF COURT

Rule 9.040(e), Fla.R. App. Pro. .................. 6

¥,

REFERENCE TO OPINION

The official report of the opinion of the District

Court of Appeal of the State of Florida, Fifth District,

sought to be reviewed herein, is cited at Cape Publications,

Inc. v. Bridges, 423 So.2d 426 (Fla. 5th DCA 1982). A

copy of the opinion is contained in Petitioner’s Appendix

(A 2-6). Certiorari was denied by the Supreme Court of

Florida.

VI.

JURISDICTIONAL STATEMENT

The certiorari jurisdiction of this Court is sought

to be invoked by Petitioner for review of an opinion of

the District Court of Appeal of the State of Florida,

Fifth District, entered on November 24, 1982 (A 2-6),

rehearing denied on December 14, 1982 (A 7). The

Supreme Court of Florida declined to exercise its certiorari

jurisdiction on May 12, 1983 (A 9).

Petitioner believes that this Court should exercise

its discretionary certiorari jurisdiction because this

case presents a substantial federal question which has

not been, but should be, settled by the Court. Jurisdiction

is invoked pursuant to 28 U.S.C. §1257(8).

VIL.

RELEVANT CONSTITUTIONAL PROVISIONS

The instant cause presents for this Court’s review

and resolution a conflict between the First and Fourteenth

Amendment rights of the Respondents, and the

Petitioner’s constitutional right of privacy embodied in

the penumbrae of the First, Fourth, Fifth, Ninth and

Fourteenth Amendments. The verbatim text of each of

these Amendments is set forth below:

AMENDMENT I.

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

AMENDMENT IV.

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

AMENDMENT V.

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the militia, when in actual

service in time of war or public danger; nor

shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due process

of law; nor shall private property be taken for

public use, without just compensation.

AMENDMENT IX.

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or

disparage others retained by the people.

AMENDMENT XIV.

SECTION 1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

VIII.

STATEMENT OF THE CASE AND FACTS

On Monday, August 1, 1977, the Petitioner, HILDA

BRIDGES, was abducted at gunpoint from her place of

employment by her estranged husband and taken to

his apartment in Cocoa, Florida. There he held Petitioner

hostage, where he beat her and forced her to remove

all of her clothing.

Police officers who appeared at the scene attempted

to persuade Petitioner's husband to release her and to

surrender. When these efforts failed, the apartment

building was surrounded and his surrender was ordered.

From outside of the building, the officers heard a gunshot

and a woman's scream. Upon entering the apartment,

it was discovered that the husband had shot himself in

the chest; he died shortly thereafter.

HILDA BRIDGES was escorted by police officers

from the scene of the shooting, being forced to leave

the apartment while unclothed, clutching a small towel

to her body to cover her nakedness.

Two newspaper reporters employed by Today

Newspaper, a publication of Respondent, CAPE

PUBLICATIONS, INC., were present at the scene as

the events described above transpired. Both took a

number of photographs, including pictures of Petitioner

as she was escorted nude from the apartment building.

One of these photographs, taken by Respondent SCOTT

MACLAY, was published in the August 2, 1977, edition

of Respondent, CAPE PUBLICATIONS, INC.’S Today.

The other photograph was released by Respondent,

CAPE PUBLICATIONS, INC., for dissemination through

the Associated Press wire service and was subsequently

published by other newspapers. The published

photographs depict nude frontal views of the Petitioner,

grasping a small towel, as she fled from the scene of

her husband's suicide in the company of a police officer.

Suit was filed by Petitioner against Respondents

and others on June 19, 1978 in the Circuit Court of the

Eighteenth Judicial Circuit in and for Brevard County,

Florida, alleging causes of action for, among other theories

of recovery not of concern to this Court,’ invasion of

her constitutional right of privacy through the non-

consensual publication of embarrassing, humiliating

photographs (A 11-21). Constitutional objections to

maintenance of the suit were immediately and

continuously raised by Respondents, in their motion to

dismiss (A 22-27) and subsequent pleadings.’ Following

amendments to Petitioner’s complaint, the trial court

denied the Respondents’ motions for summary judgment

(A 28-29).

‘Petitioner's original complaint asserted causes of action for

invasion of privacy, intentional infliction of emotional distress and

trespass.

*With respect to the invasion of privacy count, Respondents’

initial motion to dismiss was granted with leave afforded to Petitioner

to amend her pleadings. Amendments to the complaint were made,

and constitutional objections raised by the Respondents, on two

occasions. In answer to the Petitioner's Second Amended Complaint,

Respondents alleged their First and Fourteenth Amendment privilege

as an affirmative defense, and also sought summary judgment on

that basis.

Petitioner's case was submitted to a jury on her

Second Amended Complaint on theories of invasion of

privacy and intentional infliction of emotional distress.

Petitioner's jury returned a general verdict against

Respondents of compensatory and punitive damages.

Both parties appealed, Petitioner asserting that the

jury had been improperly instructed as to punitive

damages and that the amount of the verdict was

inadequate, and Respondents contending that the

offending publications were not actionable at common

law and were absolutely privileged under the First and

Fourteenth Amendments.’

The opinion of the District Court of Appeal of the

State of Florida, Fifth District, found that there was no

invasion of Petitioner's privacy by virtue of publication

of her photographs in connection with a newsworthy

event, that the trial court erred in denying defense

motions for entry of a directed verdict and judgment

notwithstanding the verdict, and that the challenged

photographs fell within “a newspaper's privilege to

publish news in the public interest” (A 6).

Petitioner’s motion for rehearing filed with the

court below was denied on December 8, 1982 (A 7), as

was Petitioner’s application for certiorari filed in the

Supreme Court of Florida (jurisdiction declined on May

12, 1983) (A 9). This proceeding timely followed.

‘These arguments were initially presented in the appellate

court in the parties’ briefs, since assignments of error are not

permitted in Florida. Rule 9.040(e), Fla. R. App. Pro. The issues

presented for review by the Respondents in their briefs before

that tribunal are reproduced in Petitioner's Appendix at pages 31

through 32.

IX.

REASONS FOR GRANTING THE WRIT—

ARGUMENT THEREON

The issue submitted herein for review is one as to

which, albeit the subject of recurring allusion, this

Court has assiduously avoided decision, to wit: whether

the media privilege of publication under the First and

Fourteenth Amendments precludes a cause of action

for invasion of a private individual's right of privacy

for publication of truthful but damaging information

(in this case, photographs).

In Time, Inc. v. Hill, 385 U.S. 374 (1966), Mr. Hill

sued for invasion of his privacy due to a false media

report that a new play purportedly portrayed a true

account of an ordeal suffered by Hill and his family.

The family had involuntarily been involved in a news

report of an incident in which they had been held

hostage. The vafter, a book had been written which

formed the basis for a play, which in turn was the

subject of a false magazine story.

In deciding that case, upon a finding that “truth is

a complete defense in actions under the [New York]

statute based upon reports of newsworthy people or

events,” Jd. at 383, the Court declined to address

“{cjonstitutional questions which might arise if truth

were not a defense. .. .”*

‘The parties in Hill were specifically requested to brief the

following question: “ ‘(1) Is the truthful presentation of a newsworthy

item ever actionable under the New York statute as construed or

on its face? . . |" Jd. at 382, fn. 6, quoting 384 U.S. 995.

In discussing the little protection afforded the privacy

of an involuntarily newsworthy person under the statute,

the Court noted the possibility that, in a “right of

privacy” case, “the published matter need not be

defamatory, on its face or otherwise, and might even

be laudatory and still warrant recovery.” Jd. at 384, fn.

9. However, this Court declined to reach that issue,’

stating that “the question whether the same standard

should be applicable both to persons voluntarily and

involuntarily thrust into the public limelight is not

here before us.” /d. at 391.

In Greenbelt Cooperative Pub. Assoc. vu. Bresler,

398 U.S. 6 (1970), the Court had occasion to address the

question of whether truthful media reports could form

the basis for an action for alleged defamation, where

the plaintiff had been accused in a public meeting of

“blackmail” with respect to his legitimate business

dealings, and an account of the accusation had thereafter

been published. Although the Court again refused to

be drawn into answering the broad question,’ the following

observation was made:

*The holding of Hill was that “the constitutional protections

for speech and press preclude the application of the New York

statute to redress false reports of matters of public interest in the

absence of proof that the defendant published the report with

knowledge of its falsity or in reckless disregard of the truth.” /d.

at 467.

‘In Greenbe!=, the Court held that “as a matter of constitutional

law, the word ‘blackmail’ in these circumstances was not slander

when spoken, and not libel when reported in the Greenbelt News

Review.” /d. at 13.

It is not disputed that the articles published

in the petitioners’ newspaper were accurate

and truthful reports of what had been said at

the public hearings before the city council. [fn.

omitted] In this sense, therefore, it cannot

even be claimed that the petitioners were guilty

of any ‘departure from the standards of

investigation and reporting ordinarily adhered

to by responsible publishers,’ Curtis Publishing

Co. v Butts, supra, at 155, 18 L Ed 2d at 1111

(opinion of Harlan, J.), much less the knowing

use of falsehood or a reckless disregard of

whether the statements made were true or

false. New York Times Co. v Sullivan, supra,

at 280, 11 L Ed 2d 706.

Id, at 12-13.

It is this Court’s decision in Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469 (1975), however, which most

closely touches upon the question squarely presented

in this case. In Coz, suit was filed by the father of a

deceased, seventeen-year-old rape victim, claiming an

invasion of privacy for release of his child’s identity in

television broadcasts. His action was founded upon a

Georgia statute which made such disclosure punishable

as a misdemeanor.

It appeared from the facts that the information

disclosed had been obtained from judicial records. The

defendants admitted the broadcasts but claimed that

they were privileged under the First and Fourteenth

Amendments. On appeal, the Georgia Supreme Court

originally held that it was error to extend the applicable

statute to a civil cause of action, but found that the

asserted misconduct gave rise to a common law cause

of action for invasion of privacy not barred by either

constitutional provision. On rehearing, the Georgia court

disagreed that publication of the decedent's name was

a matter of public interest, and upheld the constitutionality

of the non-disclosure statute as a legitimate limitation

upon the First Amendment. /d. at 474-475.

This Court reversed, but again declined to address

“the broader question whether truthful publications

may ever be subjected to civil or criminal liability

consistently with the First and Fourteenth Amendments,

or to put it another way, whether the State may ever

define and protect an area of privacy free from unwanted

publicity in the press... .” Jd. at 491. Instead, the

Court focused upon

the narrower interface between press and

privacy that this case presents, namely, whether

the State may impose sanctions on the accurate

publication of the name of a rape victim obtained

from public records—more specifically, from

judicial records which are maintained in

connection with a public prosecution and which

themselves are open to public inspection.

Id.

This narrow question was answered in the negative,

but not without discussion of the direct confrontation

posed between the equally fundamental constitutional

claims of privacy and freedom of speech in cases involving

otherwise private individuals and information:

10

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. The face-off is

apparent, and the appellants urge upon us the

broad holding that the press may not be made

criminally or civilly liable for publishing

information that is neither false nor misleading

but absolutely accurate, however damaging it

may be to reputation or individual sensibilities.

Id. at 489.

This Court found no issue before it in Cox involving

an action for invasion of privacy involving appropriation

of one’s name or photograph, no physical intrusion, and

no claim that publication had been made of otherwise

private information that was also false. Rather, the

privacy interest at stake was “the right to be free from

unwanted publicity about . . . private affairs, which,

although wholly true, would be offensive to a person of

ordinary sensibilities.” Jd.

In the case at bar, resolution of Petitioner's claim

of invasion of privacy requires an answer to the question

“carefully left open” in Coz, namely, in the words of

the Court, ‘whether the First and Fourteenth

Amendments require that truth be recognized as a

de‘ense in a defamation action brought by a private

person as distinguished from a public official or public

figure.” Jd. at 490.

11

It is important to note that Petitioner here sued

Respondents, not for the publication of truthful words,

but for the unnecessary, non-consensual publication of

lurid, highly embarrassing photographs published in

connection with the news story. Thus, this case does

not present a clash of Petitioner's right of privacy with

“pure speech” First and Fourteenth Amendment

freedoms. Petitioner contends that the outrageous,

offensive intrusion into her private affairs through

publication of “nonspeech” elements does give rise to

some limitation of the freedoms embodied in the First

and Fourteenth Amendments.’

This Court acknowledged in Cox that “powerful

arguments can be made, and have been made, that

however it may be ultimately defined, there is a zone

of privacy surrounding every individual, a zone within

which the State may protect him from intrusion by the

press, with all its attendant publicity.” /d. at 487. (Emphasis

in original.) Petitioner asserts that the gratuitous

publication and dissemination by Respondents of sexually

titillating photographs of her in this case served no

legitimate constitutional purpose, but were tantamount

to invasion of her privacy through misappropriation of

‘Petitioner concedes that, were the published words alone

the extent of Respondents’ intrusion, her claim of violation of

privacy would be constitutionally void. However, “[t]his Court has

held that when ‘speech’ and ‘nonspeech’ elements are combined in

the same course of conduct, a sufficiently important governmental

interest in regulating the nonspeech element can justify incidental

limitations on First Amendment freedoms.” United States v. O'Brien,

391 U.S. 367, 376 (1968).

12

her photographed likeness. Such publications also invaded

Petitioner's right to be free from unwanted, though

truthful, publicity about her private affairs.

It is clear that, absent an unfavorable federal

constitutional interpretation, Florida law has long

recognized the tort of invasion of privacy, even when a

media defendant is involved. Cason v. Baskin, 20 So.2d

243 (Fla. 1944); Jacova vu. Southern Radio and Television

Co., 83 So.2d 34 (Fla. 1955).°

Petitioner respectfully requests this Court to exercise

its discretionary certiorari jurisdiction in this cause, to

quash the opinion of the lower court, and to direct that

court to reinstate Petitioner's appeal for reconsideration

on the merits.

*An individual's right of privacy in Florida now also enjoys

state constitutional protection. Article I, Section 23, of the Florida

Constitution, approved by the electorate in November 1980, provides:

“Every natural person has the right to be let alone and free from

governmental intrusion into his private life except as otherwise

provided herein. This section shall not be construed to limit the

public's right to access to public records and meetings as provided

by law.”

13

X.

CONCLUSION

Based upon the foregoing reasons and citations of

authority, the Petitioner respectfully urges this Honorable

Court to take jurisdiction of the instant cause, to review

the cause on the merits, to quash the opinion herein

sought to be reviewed, and to enter such other relief as

this Court deems advisable under the circumstances.

Respectfully submitted,

JOAN H. BICKERSTAFF

1811 South Riverview Drive

Melbourne, Florida 32901

(305) 723-1009

By:

JOAN H. BICKERSTAFF

and

JAMES H. NANCE, of

NANCE, CACCIATORE &

SISSERSON, P.A.

525 North Harbor City Boulevard

Melbourne, Florida 32935

(305) 254-8416

By:

JAMES H. NANCE

Attorneys for Petitioner

14

X.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the

foregoing Petition for Writ of Certiorari was served,

by mail, this ____ day of , 1983 on: JACK A.

KIRSCHENBAUM, ESGQ., 505 North Orlando Avenue,

P. O. Box 757, Cocoa Beach, Florida 32931 and JOHN B.

McCRORY, ESQ., Lincoln First Tower, P. O. Box 1015,

Rochester, New York 14603, Attorneys for Respondents.

JOAN H. BICKERSTAFF

15

Appendix

INDEX TO APPENDIX

Page

CN ee DOU aE GCS bog haa cok eG App. 2

Order Denying Rehearing................ App. 7

Order Denying Petition for

Po ee App. 9

Complaint with Exhibits ................. App. 11

Beene CO EN gg 6 keer ici eerievee: App. 22

Order Denying Summary Judgment

Pe eee eer ere App. 28

Initial Brief of Appellants;

Issues Presented for Review............ App. 31

App. !

[NOT FINAL UNTIL THE TIME EXPIRES TO FILE

REHEARING MOTION, AND, IF FILED, DISPOSED

OF.]

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 1982

CAPE PUBLICATIONS, INC., and

SCOTT MACLAY,

A ppellants/Cross-A ppellees,

Vv.

HILDA BRIDGES,

Appellee/Cross-A ppellant.

Opinion filed NOVEMBER 24, 1982

Appeal from the Circuit Court for Brevard County,

Tom Waddell, Jr., Judge.

John B. McCrory and Robert C. Bernius, of Nixon,

Hargrave, Devans & Doyle, Rochester, New York and

Joe Teague Caruso and Jack A. Kirschenbaum, of Wolfe,

Kirschenbaum, Caruso, Mosley & Kabboord, P.A.,

Cocoa Beach, for Appellants/Cross-Appellees.

Edward A. Perse, of Horton, Perse & Ginsberg, Miami,

and Nance, Cacciatore & Sisseron [sic], Melbourne,

for Appellee/Cross-Appellant.

DAUKSCH, J.

App. 2

Appellee Bridges brought suit against appellants

on the theories of invasion of privacy, intentional infliction

of emotional distress, and trespass,' alleging that

appellant’s conduct in publishing a photograph of appellee

was actionable. The news story reported the abduction

of appellee by her estranged husband who came to her

workplace and at gunpoint forced her to go with him to

their former apartment. The police were alerted and

after surrounding the apartment began efforts to free

appellee. Her husband forced her to disrobe in an effort

to prevent her escape. Her life was obviously in danger.

This is a typical exciting emotion-packed drama to

which newspeople, and others, are attracted. It is a

newsworthy story. Upon hearing a gunshot, the police

stormed the apartment and rushed appellee outside to

safety. Appellee was clutching a dish towel to her body

in order to conceal her nudity as she was escorted to

the police car in full public view. The photograph revealed

little more than could be seen had appellee been wearing

a bikini and somewhat less than some bathing suits

seen on the beaches. There were other more revealing

photographs taken which were not published. The

published phetograph is more a depiction of grief, fright,

emotional tension and flight than it is an appeal to

other sensual appetites. The jury awarded appellee

$1,000.00 in compensatory damages and $9,000.00 in

punitive damages.

It is settled law in Florida that the right of privacy

does not necessarily protect a person against the

publication of his name or photograph in connection

with the dissemination of legitimate news items or

other matters of public interest. Jacova v. Southern

'The trespass claim was dismissed during trial.

App. 3

Radio and Television Company, 83 So.2d 34 (Fla. 1955);

Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944), on

appeal after remand, 159 Fla. 31, 30 So.2d 635; Harms

v. Miami Daily News, Inc., 127 So.2d 715 (Fla. 3d DCA

1961). At some point the public interest in obtaining

information becomes dominant over the individual's

right of privacy. “It has been said that the truth may

be spoken, written or printed about all matters of a

private nature in which the public has a legitimate

interest.” Cason v. Baskin, 20 So.2d at 251. Within the

scope of legitimate public concern are matters customarily

regarded as “news.” *

In determining the extent of the right of privacy,

the standard by which the right is measured is based

upon a concept of the person of reasonable sensibility;

the hypersensitive individual will not be protected.

An invasion of the right of privacy occurs not

with the mere publication of a photograph,

but occurs when a photograph is published

where the publisher should have known that

its publication would offend the sensibilities

of a normal person, and whether there has

been such an offense [sic] invasion of privacy

is to some extent a question of law.

Jacova at 83 So.2d 36, 39.

*Authorized publicity, customarily regarded as “news,” includes

publications concerning crimes, arrests, police raids, suicides, marriages,

divorces, accidents, fires, catastrophes of nature, narcotics related deaths,

rare diseases, etc. and many other matters of genuine popular appeal.

Restatement of (Second) Torts, $652D Comment G (1977).

App. 4

Although publication of the photograph, which won

industry awards, could be considered by some to be in

bad taste * the law in Florida seems settled that where

one becomes an actor in an occurrence of public interest,

it is not an invasion of her right to privacy to publish

her photograph with an account of such occurrence.’

Jacova, 83 So.2d at 36. Just because the story and the

photograph may be embarrassing or distressful to the

plaintiff does not mean the newspaper cannot publish

what is otherwise newsworthy.

Likewise, the publication of the story and photograph

does not meet the test of outrageousness as required

for the independent tort of intentional infliction of

‘See Neff v. Time, Inc., 406 F.Supp. 858, 860 (W.D. Pa. 1976) wherein

the court noted:

It seems to us that art directors and editors should hesitate to

deliberately publish a picture which most likely would be offensive

and cause embarrassment to the subject when many other

pictures of the same variety are available. Notwithstanding,

“(t]he courts are not concerned with establishing canons of good

taste for the press or the public.” (citation omitted).

‘See Restatement of (Second) Torts, §652D Comment F (1977), which

explains that such accounts are not an invasion of privacy to:

[t]hose who are the victims of crime or are so unfortunate as to

be present when it is committed, as well as those who are the

victims of catastrophes or accidents or are involved in judicial

proceedings or other events that attract public attention. These

persons are regarded as properly subject to the public interest,

and publishers are permitted to satisfy the curiosity of the

public as to its heroes, leaders, villains, and victims, and those

who are closely associated with them. As in the case of the

voluntary public figure, the authorized publicity is not limited

to the event that itself arouses the public interest and to some

reasonable extent includes publicity given to facts about the

individual that would otherwise be purely private.

App. 5

emotional distress. See Food Fair, Inc. v. Anderson,

382 So.2d 150, 153 (Fla. 5th DCA 1980).

Courts should be reluctant to interfere with a

newspaper's privilege to publish news in the public

interest. The trial court erred in denying appellant's

Motions for Directed Verdict and Judgment

Notwithstanding the Verdict, so we must reverse the

judgment.

REVERSED.

ORFINGER, CJ. and UPCHURCH, F., J., concur.

I hereby certify that the above

and foregoing is a true copy of

instrument filed in my office.

FRANK J. HABERSHAW, CLERK

DISTRICT COURT OF APPEAL OF

FLORIDA, FIFTH DISTRICT

Per /s/ Christina M. Wittman

Deputy Clerk

App. 6

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

FIFTH DISTRICT

CASE NO. 81-1552

81-1566

CAPE PUBLICATIONS, INC., and

SCOTT MACLAY,

Appellant/Cross-A ppellee,

v.

HILDA BRIDGES,

Appellee/Cross-A ppellant.

DATE: December 16, 1982

BY ORDER OF THE COURT:

ORDERED that Appellee’s PETITION FOR

REHEARING, filed December 8, 1982, is hereby denied.

I hereby certify that the foregoing is

(a true copy of) the original court order.

FRANK J. HABERSHAW, CLERK

By: /s/ Rowland W. Halliday

Deputy Clerk

(COURT SEAL)

App. 7

ec: Edward A. Perse, Esquire

John B. McCrory, Esquire

Jack A. Kirschenbaum, Esquire

I hereby certify that the above and

foregoing is a true copy of instrument

filed in my office.

FRANK J. HABERSHAW, CLERK

DISTRICT COURT OF APPEAL OF

FLORIDA, FIFTH DISTRICT

Per /s/ Christina M. Wittman

Deputy Clerk

App. 8

SUPREME COURT OF FLORIDA

THURSDAY, MAY 12, 1983

CASE NO. 63,088

District Court of Appeal,

5th District — Nos. 81-1552, 81-1566

HILDA BRIDGES,

Petitioner,

v.

CAPE PUBLICATIONS, INC., et al.,

Respondents.

This cause having heretofore been submitted to

the Court on jurisdictional briefs and portions of the

record deemed necessary to reflect jurisdiction under

Article V, Section 3(b), Florida Constitution (1980), and

the Court having determined that it should decline to

accept jurisdiction, it is ordered that the Petition for

Review is denied.

No Motion for Rehearing will be entertained by

the Court. See Fla. R. App. P. 9.330(d).

App. 9

BOYD, OVERTON, McDONALD and EHRLICH, JJ.,

concur

ADKINS, Acting C. J., dissents

A True Copy

TEST:

Sid J. White

Clerk Supreme Court

By Kay O. Gent

Deputy Clerk

TC

ec: Hon. Frank J. Habershaw, Clerk

Hon. Tom Waddell, Jr., Judge

Hon. Raymond C. Winstead, Jr.,

Clerk

Edward A. Perse, Esquire

Nance, Cacciatore & Sisserson

John B. McCrory, Esquire

Robert C. Bernius, Esquire

Jack A. Kirschenbaum, Esquire

App. 10

[FILED MAY 18 ‘78}

IN THE CIRCUIT COURT OF THE EIGHTEENTH

JUDICIAL CIRCUIT OF THE STATE OF FLORIDA,

IN AND FOR BREVARD COUNTY

NO: 78-1864-CA-01-C

HILDA BRIDGES,

Plaintiff,

-US-

SCOTT MACLAY, CAPE PUBLICATIONS, INC.,

a Florida corporation, THE ASSOCIATED PRESS,

a foreign corporation, and GANNETT NEWS

SERVICES, INC., a foreign corporation,

Defendants.

COMPLAINT

The Plaintiff, HILDA BRIDGES, sues the

Defendants, SCOTT MACLAY (hereinafter referred to

as Maclay”), CAPE PUBLICATIONS, INC., a Florida

corporation, d/b/a TODAY Newspaper (hereinafter

referred to as “Cape”), THE ASSOCIATED PRESS, a

foreign corporation, (hereinafter referred to as “AP”),

and GANNETT NEWS SERVICES, INC., a foreign

corporation, (hereinafter referred to as “Gannett”’).

1. This is a suit for damages in excess of Two

Thousand Five Hundred Dollars ($2,500.00) exclusive

of interest and costs.

App. 11

2. That at all times material hereto the Defendant

“Cape” was a Florida Corporation doing business as

Today, a newspaper of general circulation in central

Florida area including Brevard County.

3. That at all relevant times the Defendant

“Gannett” was a foreign corporation doing business in

the State of Florida, Brevard County.

4. Atall relevant times the Defendant “AP” was

a foreign corporation doing business in the State of

Florida and that the said Defendant furnished and

supplied wire services and news and press transmissions

and releases to newspapers and other media and other

media sources within the State of Florida and performed

said services within the State of Florida for news and

press transmissions as aforesaid to other media sources

out of the State of Florida.

5. That the Defendant “AP” is subject to

impersonam jurisdiction of the courts of the State of

Florida pursuant to Florida Statute §48.181 and §48.193

in that the said Defendant was actually doing business

in the State of Florida as hereinabove set forth and did

transmit or cause to be transmitted Plaintiff's Exhibits

“B” and/or “C” as hereinafter set forth.

6. On or about August 1, 1977, the Plaintiff, Hilda

Bridges, was abducted from her place of employment

at McDonnell Douglas Aeronautics plant in Titusville,

Brevard County, Florida at gunpoint by her then

estranged husband, Clyde Bridges. She was transported

to the premises of 619 Peachtree Street, Apartment 7,

Cocoa, Florida (hereinafter referred to as “the premises”).

App. 12

The Plaintiff was held against her will at the premises

until approximately 6:00 p.m. August 1, 1977, at which

time she was forcibly removed from the premises by

the Police immediately following the suicide of Clyde

Bridges. The facts relating to the Plaintiff's abduction

and subsequent release are more particularly set forth

in the newspaper article published by the Defendant

“Cape”, a true copy of which is attached hereto as

Exhibit “A”, and by such reference made a part hereof.

Of relevance to this action is the fact that the Plaintiff

had been repeatedly beaten and compelled to disrobe,

and at the time of her release from the premises, was

in an acute state of shock and emotional distress.

7. Copies of the photographs depicting the Plaintiff's

removal from the premises are attached hereto as Exhibits

“B” and “C” and by such reference made a part hereof.

8. During the period of time that the Plaintiff

was held hostage by Clyde Bridges at the premises,

the Defendant “Cape” dispatched to the area the

Defendant “Maclay”, a staff photographer, who took

the photographs represented by Exhibits “B” and “C”

without the consent of the Plaintiff.

9. On August 2, 1977, Exhibits “B” and “C” were

published by the Defendants “Cape” in Today Newspaper

without the consent of the Plaintiff. Copies of Exhibits

“B” and “C” were provided to the Defendants “AP”

and ‘Gannett’ who distributed them to various

publications subscribing to their services with the result

that copies of Exhibits “B” and “C” were published,

without the consent of the Plaintiff, by a number of

newspapers of general circulation throughout the United

App. 13

States and other countries, including St. Petersburg

Times and Today.

10. At all relevant times prior to her release by

the Police, the Plaintiff was involuntarily in the custody

of Clyde Bridges, and so remained under the duress of

death or serious bodily injury.

11. At all relevant times in which the Plaintiff

was nude, she remained in such condition solely and

exclusively from fear of death or serious bodily injury

from Clyde Bridges and from the instructions and actions

of the policy [sic} in hastily removing her from the

premises.

12. At all relevant times the Plaintiff was the

co-lessee with Clyde Bridges under a lease agreement

for the premises and had the right of possession to the

premises together with the appurtenant common areas

in the apartment building in which the premises are

located.

COUNT 1

13. The Plaintiff reiterates and adopts as if fuily

set forth herein the allegations of paragraphs 1 through

12 inclusive.

14. The act of photographing of the Plaintiff in

the state of nudity in which she exited at the time that

Exhibits “B” and “C” were taken constitute an invasion

of her right to the privacy of her physical person so as

to cause the damages more specifically hereinafter stated.

App. 14

COUNT II

15. The Plaintiff reiterates and adopts as if fully

set forth herein the allegations of paragraphs 1 through

12 inclusive.

16. By taking the photographs represented by

Exhibits “B” and “C” and causing the same to be published

in the Today Newspaper and to be distributed to, and

published in, various other newspapers, the Defendants

invaded the Plaintiffs right to privacy of her person so

as to cause the damages more specifically stated

hereinafter.

COUNT III

17. The Plaintiff reiterates and adopts as if fully

set forth herein the allegations of paragraphs 1 through

12 inclusive.

18. In taking the photographs represented by

Exhibits “B” and “C” the Defendant “Maclay” entered

upon the property subject to the aforesaid lease

agreement and appurtenant to the premises and did so

without the consent of the Plaintiff or any other person

authorized to grant such consent. Such entry upon this

property constituted a trespass, and contributed directly

and proximately to the damages more specifically stated

hereinafter.

COUNT IV

19. The Plaintiff reiterates and adopts as if fully

set forth herein the allegations of paragraphs 1 through

11 inclusive.

App. 15

20. The photographing of the Plaintiff and

subsequent publication and distribution of the photographs

was an intentional act of the Defendants. Said photographs

depicted the Plaintiff in such a derogatory, scandalous,

degrading, defaming and embarrassing manner as to

constitute a liable upon her person and to directly and

proximately cause the damages more specifically

hereinafter stated.

COUNT V

21. The Plaintiff reiterates and adopts as if fully

set forth herein the allegations of paragraphs 1 through

11 inclusive.

22. The act of taking, publishing and distributing

the photographs represented by Exhibits “B” and “C”

was a deliberate, malicious and concerted act of the

Defendants especially calculated to cause severe emotional

distress and mental pain and anguish to the Plaintiff, a

person of ordinary sensibilities. Further, it was conduct

exceeding all bounds that could be reasonably tolerated

by society, and contributed directly and proximately to

the damages more specifically stated hereinafter.

COUNT VI

23. The Plaintiff reiterates and adopts as if fully

set forth herein the allegations of paragraphs 1 through

12 inclusive.

24. Asa direct and proximate result of the acts

of the Defendants as aforesaid, the Plaintiff has suffered

severe embarrassment, humilation, emotional suffering,

App. 16

anguish, and mental pain and suffering, and will suffer

the same in the future.

WHEREFORE the Plaintiff, Hilda Bridges, sues

the Defendants, Scott Maclay, Cape Publications, Inc.,

The Associated Press and Gannett News Service, Inc.,

jointly and severally, and demands judgment for damages,

both compensatory and punitive, in excess of Twenty-

Five Hundred Dollars ($2500.00) exclusive of costs and

interest and further requests trial by jury of all issues

triable as of a right by jury.

NANCE, CACCIATORE & SISSERSON

/s/ James H. Nance

JAMES H. NANCE

/s/ Sammy Cacciatore

SAMMY CACCIATORE

525 N. Harbor City Boulevard

Melbourne, Florida 32935

(305) 254-8416

Attorney for Plaintiff

App. 17

EXHIBIT “A”

PCS tyy Dui suUsS

Police Watch Ordea/

Of Titusville Woman

By GLEN MACNOW

and SEAN HICKEY

TOCSY Wer @reers

A Cocoa man, frus-

trated with a court order

barring him from seeing

his estranged wife, kid-

naped her from work Mon-

Gay and held her hosuge

for two hours before shoot:

ng bumself through the

(hhelttel OeTihett terete

BTU Pee Tere ttere atererene

ee“ W%e*

ind atone

heart

Clyde Bridges, 3), of 619

Peachtree Si. Apt. 7, was

pronounced ceac at the °

scere at fis apartment cad r >

shortly after 6pm. Monday 3 zy

after shooting himself once

with a 387 magnum re TODAY beet Prete oy Bee Brews

volver, police said . CLYDE BRIDGES’ BODY IS REMOVED

His wife, Hilda Bridges ™ . Bl-year<'d shot himself with .357 magnum

24, of Titusville, stripped of i

her clothes, came running

from the apariment alter

the shooung. covering her

self with a small wel A!

though she was not woun

Ged, police said, she su!

fered cuts and bruises on

the head from an apparent

ung. Officers theorized

Bridges made his wile strip

to keep her from escaping

Bridges was to face

trial next week on charges

of narcotics possession and

resisting arrest with a Gan

gtTOus weapon. He was ar

reste in his apartment by

shenft's agents June 15 and

had been cut on $50 ba

according to a shenff's ce-

partment spokesman

Bridges anc his wile

had been separated for

about three weeks. neigh

bors sarc Last week. a cir

yh se aibe . Cuit Court judge issued a

y on Oa eT + eng “eee bering

OGES|FROM SHOOTING SCENE, ="! {rom contacting her

r strip to keep her from escaping Witnesses said Bridges

> an unemployed air duct

orker, approached his

wife outside the McDonnel!

Douglas Astronautics Co

plant in Titusville, where

she works, shortly after the

4pm quitting time He

grabbed her anc forced her

into his car while several

bystanders tried to stop

hm

~

pulled a silver-plated re-

volver and waved i{ af (hose

attempting to stop him be

fore driving away

“Every ty was trying

to stop him,” said Mae Ku-

Gukis, an assembly line

worker at the plant. “But

he just kept driving in the

lot trying to get away He

. came close to hitting sev-

eral people and finally took

off across the front lawn. It

See SUICIDE, Col. } SNe as pwd OS

Back Page This Section EXHIBIT "A

App. 18

61 ‘ddy

Lett. Seconds After Ordering Clyde Bridges To Give Up Sheriff's Deputies Hear Shot; Right, Sewn Rush His Cocoa v0 Agartans

‘ecea Man Kills Self in Daylight Abduction

UICIDE, From 1A )

2 re.. mess."

ridges entered SR 405

ch a security exit, but

3s couldn't tell if he

toward 1-95 or U.S. 1

“on police sot up a

ock on U.S. 1 near

sanett Causeway, but

find the couple

ota police spotied the

an hour later outside

cs" apartment. He

olcd up inside, using

le as a hostage

s%er: Lome later, sher-

+ miriment agents, led

am. Mark Overackcr

Capt. Red May at-

ty io tlk Bridges

into surrendering.

Action was stalled while

agents sought vainly to lo-

cate a relative or friend of

Bridges who could per-

suade him to give up. An-

other plan, talking to

Bridges over the phone,

failed when officers learned

his apartment had no tcle-

phone.

Agents decided to move

in and surround the apart-

ment shortly after 6 p.m.

“Let's get this over

with before dark," May

told officers, “and picase

be careful."

Six squad cars from the

sheriff's and Cocoa police

Gepartments drove up in

from of the building, while

other officers stood at the

fromt and rear exits.

“Clyde Bridges, this is

the Brevard County Sher-

iff s Department,” May

called through a bullhorn

“Come out with your hands

up.”

Seconds later, agents

heard the pop of a revolver

and the scream of 4

woman. Fearing Bridges

had shot his wife, police

rushed the building to find

Mrs. Bridges nude, scrcam-

ing in a corner and Bridges

writhing on the floor, ap-

parently reaching for the

gun he had dropped alter

shooting himsclf

A deputy kicked the gun

away and within minutes,

Bridges dicd of internal

wounds as. his dog stood

whimpering over his body.

According to May, Mrs.

Bridges seemed calm after

the shooting, and wanted to

give agents her statement

before receiving med.cal

treatment.

+ phe told agents her hus-

_ od much

Bridges’ neighbors, who

called him a quiet man,

said they were shocked by

his actions.

“He and his wife never

fighting of

d to kill

her an the kidnaping,

and had charged, “I've had

enough.”

Mrs. Bridges was taken

to Wuesthol! Memoria! Hos-

pital in Rockledge, where

she was tresicd for shock ‘

and lacerations, and re-

said = spart-

ment owner Ann Graybill.

“I was pretty surprised

when she moved out a few

weeks ago. He seemed like

a nice person.”

* “Clyde uscd t© come

over when | got together

with friends to drink beer

and watch baligames,”’ said

Bobby Smith who lived in

the apartment above

Bridges. “He didn't ever

exhibit any stress.”

“Sometimes he scemed

kind of down,” said Smith,

who works at the Brevard

Mental Health Center, “but

it never seemed he would

Go something like this.”

Sheriff's agents, how-

ever, had a different feeling

about Bridges.

“Everything we did was

with onc thing in mind,”

said Overacker. “We want-

ed to get that girl out

alive.”

“Ia that sense.” May

added, “I fucss we won."*

* 6 pm.

Driers = shects

bim«ll © &ah

Sports Aighiights

Nia

awa

and Don Reese,

pein waive $u5

players Randy Crowder

who are await

rR

Grug Charges, IC

nats George F r

wice as the Reds bea

° Cocoa Asir .

akelanc,.1C. Complete

EXHIBIT “B”

TOD,

Florey s Space — Newsp.

paper pu

vard

Wife Freec

’ =

CAPT. RED MAY ESCORTS HILDA BRIDGES

App. 20

agents theorize her husband made her ft

TOOAT tan Omens ey Seon me

ROM SHOOTING SCEN}

cnc nen millon to a. her from escap'n

—_—

Beach 743

a

of

Nation

HL

any ’

; 2 cdy

Ss &

12 “ddy

LIGIHXa

codeo

12B st pPererssunc TIMES 8

WEONESDAY. AUGUST 3. 1977

‘I've had enough’

Unemployed, facing drug charges, man kidnaps

estranged wife, then shoots himself to death

Unned Prose morsotens _

COCOA — Clyde Bridges’ togh-

bors said that he was # quiet man who

masked hus feelings Then hus marrage

broke up

“Clyde used to come over when |

got together with friends to drink beer

and watch baligames.” said

Smith. who lived in the apartment

above Brages “He didn't ever exhibst

any stress”

A judge had iasued « restraining or

der barring him from contacting his

estranged wife. He faced tral next

week on charges of narcotics posses

tion and resusting arrest with a danger

ous weapon

MONDAY HE took up « gun

Bridges, 31, kidnaped hu estranged

wife Hilda, 24, of Titusville from work

Monday afternoon and held her hoe

tage for two hours. Police surrounded

hus apartment, ordered him to surren

der and were preparing to rush the

home when Bridges shot himself

through the heart and died

Mrs. Bridges, stripped of her

clothes, came running from the spart-

ment efter the shooting, covering her

self with « email towel. Police theo-

to keep her from escaping

WITNESSES said —_— anun-

employed air duct worker, aproached

his wife outside the McDonnell

Astronautics Co. plant in Ti-

tueville where she works shortly after

quitting Lime Monday He grabbed her

and forced her into hus car while sever-

He had barricaded himself inside, us-

ing his wife as 2 hostage

Brevard County sheriffs deputies

tried to talk Bridges into surrendering.

but failed. Shortly after 6 p m., officers

ment to Sind Mre UY nude,

screaming in « corner and Bridges

writhing on the floor, apparently

reaching for the gun that be hed

dropped after shooting himself

— whimpering over his

~ County Sheriffs Capt

Red May said Mra. Bridges told depu

tues her husband had threatened to kill

ww a “2 kidnaping, saying: “I've

ns BRIDGES was treated ata |

Brevard hospital for shock and cuts

ob ae feibeny oe Lm Police

Neighbors, meanwhile, recall

Bridges as a quiet man.

“He and his wife Bever At. —_=

fighting of scream

owner Ann Graybill oan anid. “1 toes pom % Dee

when she moved out a few

weeks ago. He seemed like @ nice per-

ton.

What initiated the incident may

have been « canceled with bis

wife in which Bridges wanted to make

o last attempt at nan Se

Bridges’ attorney said.

Attorney Alezander Vance Jr. of Ti-

who was representing Mrs

Bridges in her divorce suit, said a meet-

ing had been set up for 4 p.m. Monday

in'the office of Bridges’ attorney, Ken

Studstll

“Hilde later decided she was not

to be there,” Vance said. “! think

Cocsues Bridge did ect have 0 tele-

phone, he did not learn she was not

to be there until he showed up

lor the meeting. ~-

subsequent kidnaping,”

“This could have hay the Hysterical Mrs. Bridges is helped from apartment.

>

am BES

- PT pe,

«J» LDIGTHXa

[FILED MAY 16 448 PM '78]}

IN THE CIRCUIT COURT OF THE

18TH JUDICIAL CIRCUIT IN AND

FOR BREVARD COUNTY, FLORIDA

CIVIL ACTION NO. 78-1864-CA-01-C

HILDA BRIDGES,

Plaintiff,

-vs-

SCOTT MACLAY, CAPE PUBLICATIONS, INC., a

Florida corporation, THE ASSOCIATED PRESS, a

foreign corporation, and GANNETT NEWS

SERVICES, INC., a foreign corporation,

Defendants.

MOTION TO DISMISS

Defendants SCOTT MACLAY, CAPE PUBLICA-

TIONS, INC., AND GANNETT NEWS SERVICES,

INC., by undersigned counsel, hereby move the Court

pursuant to Florida R.C.P. 1.140/d) (6), for an order

dismissing Counts I through VI of Plaintiff's Complaint

for failure to state causes of action, upon the following

grounds:

App. 22

COUNT I

1. As a matter of law, Count I of Plaintiff's

Complaint fails to allege facts sufficient to constitute a

cause of action for invasion of privacy under any of the

four theories recognized by law in Florida. Specifically,

the complaint fails to allege: an appropriation, for the

Defendant's benefit or advantage, of the Plaintiff's name

or likeness; an intrusion upon the Plaintiff's physical

solitude or seclusion; a public disclosure, of a highly

objectionable kind, of private information about the

Plaintiff; or, publicity which places the Plaintiff in a

false light in the public eye.

2. As alleged in Plaintiffs Complaint, Defendant

MACLAY is a press photographer and thereby entitled

to the free speech and free press privileges and protections

afforded by the First and Fourteenth Amendments of

the United States Constitution and Article I, Section 4

of the Constitution of the State of Florida. As a matter

of law, the aforesaid constitutional privileges and

protections prohibit imposition of liability on Defendant

MACLAY for photographing the Plaintiff while she

was involved in a matter of obvious legitimate generai

public interest and concern.

COUNT II

3. As a matter of law, Count I of Plaintiff's

Complaint fails to allege facts sufficient to constitute a

cause of action for invasion of privacy under any of the

four theories recognized by law in Florida. Specifically,

the complaint fails to allege: an appropriation, for the

Defendants’ benefit or advantage, of the Plaintiff's name

App. 23

or likeness; an intrusion upon the Plaintiff's physical

solitude or seclusion; a public disclosure, of a highly

objectionable kind, of private information about the

Plaintiff; er, publicity which places the Plaintiff in a

false light in the public eye.

4. As alleged in Plaintiffs Complaint, Defendants

are members of the press and thereby entitled to the

free speech and free press privileges and protections

afforded by the First and Fourteenth Amendments to

the United States Constitution and Section I, Article 4

of the Constitution of the State of Florida. As a matter

of law, the aforesaid constitutional privileges and

protections prohibit imposition of liability on Defendants

for the taking, publication and distribution of the

photographs complained of while the Plaintiff was

involved in a matter of obvious legitimate general

public interest and concern.

COUNT III

5. As a matter of law, Count III of Plaintiff's

complaint fails to allege facts sufficient to constitute a

cause of action for trespass in that the complaint is

devoid of allegations that Defendant MACLAY'’s entry

onto the appurtenant or common grounds of the apartment

complex was not peaceable, was made over objection

of Plaintiff, or was not in accordance with common

custom or usage.

6. As a matter of law, Count III of Plaintiff's

Complaint fails to allege facts sufficient to constitute a

cause of action for trespass in that Plaintiff has no

standing to pursue such a cause of action for trespass

App. 24

upon appurtenant or common grounds of an apartment

complex which Plaintiff did not own and of which Plaintiff

had no exclusive right of possession.

COUNT IV

7. As a matter of law, Count IV of Plaintiff's

Complaint fails to allege facts sufficient to constitute a

cause of action for libel, in that the complaint is devoid

of any allegation that the photograph complained of

was in any way false or inaccurate.

COUNT V

8. As a matter of law, Count V of Plaintiff's

Complaint fails to allege facts sufficient to constitute

any cause of action. As alleged in Plaintiff's Complaint,

Defendants are members of the press and thereby

entitled to the free speech and free press privileges

and protections afforded by the First and Fourteenth

Amendments to the United States Constitution and

Section I, Article 4 of the Constitution of the State of

Florida. As a matter of law, the aforesaid constitutional

privileges and protections prohibit imposition of liability

on Defendants for the taking, publication and distribution

of the photograph complained of while the Plaintiff

was involved in a matter of obvious legitimate general

public interest and concern.

COUNT VI

9. As a matter of law, Count VI of Plaintiff's

Complaint fails to allege facts sufficient to constitute a

cause of action under any theory of law. Count VI of

App. 25

Plaintiffs Complaint alleges no more than that Plaintiff

has suffered damages, with no allegation of any duty

owed the Plaintiff by the Defendants, any breach of

any such duty, or that any breach of any such duty was

the cause of the alleged damages.

WHEREFORE, Defendants SCOTT MACLAY,

CAPE PUBLICATIONS, INC. and GANNETT NEWS

SERVICES, INC. pray the Court enter an order

dismissing Counts I through VI of Plaintiff's Complaint.

/s/ William T. McCluan

William T. McCluan, of

CROFTON, HOLLAND,

STARLING, HARRIS &

SEVERS, P.A.

P.O. Box 459

Melbourne, Florida 32901

(305) 724-1226

Attorneys for Defendants

MACLAY, CAPE AND

GANNETT

I HEREBY CERTIFY that a true copy of the

foregoing was furnished by mail this 16th day of June,

1978, to Sammy Cacciatore, Esquire, NANCE,

App. 26

CACCIATORE & SISSERSON, 525 N. Harbor City

Boulevard, Melbourne, Florida 32935, Attorneys for

Plaintiff.

/s/ William T. MceCluan

Attorney

STATE OF FLORIDA,

COUNTY OF BREVARD

I HEREBY CERTIFY that the

above and foregoing is a true copy

of the original filed in this office.

R.C. WINSTEAD, JR.,

Clerk Circuit Court

By /s A. Claudius D.C.

App. 27

[FILED OCT 5 1017 AM ’81]

IN THE CIRCUIT COURT IN AND FOR

BREVARD COUNTY, FLORIDA.

CASE NO: 78-1864-CA-01-CB

HILDA BRIDGES,

Plaintiff,

Vs.

SCOTT MACLAY, CAPE PUBLICATIONS INC., a

Florida corporation, GANNETT NEWS SERVICES,

INC., a foreign corporation, and ROBERT BROWN

Defendants.

ORDER

This cause came on to be heard on 16th day of

September, 1981, upon the Motions for Summary

Judgment of the Defendants Cape Publications, Inc.,

Scott Maclay, Gannett News Services, Inc., and Robert

Brown. The Court having heard arguments of counsel,

reviewing the file and being otherwise fully advised in

the premises find that there are genuine issues of law

and fact regarding the claims of the Plaintiff against

the Defendants Scott Maclay, Cape Publications, Inc.,

and Robert Brown. The Court further finds that there

are no genuine issues of law and fact in the claims of

the Plaintiff against Defendant, Gannett News Services,

Ine.

App. 28

IT IS THEREUPON ORDERED AND ADJUDGED

1. That the Motions for Summary Judgment of

the Defendants, Scott Maclay, Cape Publications, Inc.,

and Robert Brown be and the same is hereby denied.

2. That the Motion for Summary Judgment of

the Defendant Gannett News Services, Inc., be and the

same is hereby granted.

DONE AND ORDERED in Chambers at the Brevard

County Courthouse, in Melbourne, Brevard County,

Florida, this 18th date of September, 1981.

/s/ T. Waddell, Jr.

CIRCUIT JUDGE

App. 29

I HEREBY CERTIFY that a copy of the foregoing

has been furnished, by mail, to Jack A. Kirschenbaum,

Esquire, Post Office Box 757, Cocoa Beach, Florida

32931 and John B. McCrory, Esquire, Post Office Box

1051, Rochester, New York 14603 this 24th day of

September, 1981.

/s/ Jayne E. McGonigal

Secretary to Circuit Judge.

STATE OF FLORIDA,

COUNTY OF BREVARD

I HEREBY CERTIFY that

the above and foregoing is a true

copy of the original filed in this

office.

R. C. WINSTEAD, JR.,

Clerk Circuit Court

Dated 7/26/83

By /s/ A. Claudius D.C.

App. 30

IN THE DISTRICT COURT OF APPEAL OF

THE STATE OF FLORIDA, FIFTH DISTRICT

5 DCA Case No. 81-1552

81-1566 (CONSOLIDATED)

Appeal from Circuit Court, Brevard County

HILDA BRIDGES,

Appellee-Cross Appellant,

-against-

SCOTT MACLAY and CAPE PUBLICATIONS, INC.,

Appellants-Cross Appellees.

INITIAL BRIEF OF APPELLANTS

NIXON, HARGRAVE, DEVANS

& DOYLE

Lincoln First Tower

John B. McCrory P.O. Box 1051

Robert C. Bernius Rochester, New York 14603

(716) 546-8000

WOLFE, KIRSCHENBAUM,

CARUSO, MOSLEY &

KABBOORD, P.A.

505 N. Orlando Avenue

P.O. Box 757

Joe Teague Caruso Glass Bank Building

Jack A. Kirschenbaum Cocoa Beach, Florida 32931

Of Counsel (305) 783-2218

Attorneys for Appellants

App. 31

TABLE OF CONTENTS

AND ISSUES PRESENTED FOR REVIEW

Page

TABLE OF AUTHORITIES ................... iii

PRELIMINARY STATEMENT................ 1

STATEMENT OF THECASE................. 2

ISSUES PRESENTED FORREVIEW.......... 2

1.

Is a newspaper's publication of a true and

accurate photograph, portraying a major

local news event, actionable, or is tort

liability forbidden both constitutional!!y and

by the common law?................ ee

Is a newspaper's publication of a true and

accurate photograph, portraying an event

which occurs in full public view, actionable,

or is tort liability forbidden both

constitutionally and by the common law? .

May punitive damages constitutionally be

imposed upon a newspaper which publishes

a true and accurate news photograph? ...

STATEMENT OF THE FACTS ................

A.

B.

C.

PPR Ee ERT EE ore

The Criminal Episode.................

De PO i sconces espe ueedes

SUMMARY OF ARGUMENT .................

App. 32