Petition for Writ of Certiorari — Wadleigh-Maurice, Ltd. v. Taggart

. <a we

SUPK cia. COURT, U. & FILE

FEB 21

MICHAEL RODAK, Jp.

IN THE .

Supreme Court of the United State

OcrosBER TERM, 1973

No. 93-1286

WADLEIGH-MAURICE, LTD. and WARNER

BROS., INC.,

Petitioners,

v.

THOMAS TAGGART

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

CHARLES G. MOERDLER

Gary J. GREENBERG

Attorneys for Petitioners

61 Broadway

New York, New York 10006

Of Counsel:

Stroock & Stroocx & LavAN

61 Broadway

New York, New York 10006

Crapp & EISENBERG

Rocer S. CLapp

744 Broad Street

Newark, New Jersey 07102

TABLE OF CONTENTS

PAGE

TR nc cc cvkensvesceteavereseuade 1

JURISDICTION ...... ccc cece cece cece ce eeeccenees 2

QUESTIONS PRESENTED ......-eeeeeeeeeeeeeeeees 2

CONSTITUTIONAL PROVISION INVOLVED ........+-- 3

STATEMENT OF THE CASE .......cscccccccccoccee 3

1. Proceedings Below .......cececeeeeeeeeees 3

2. The Undisputed Facts ........seeeeseeeeees 5

A. The Woodstock Festival .........2+005 5

ee aca deecsaaeeaeeens aes 6

C. Respondent’s Appearance in the Film... 7

3. The Decisions Below .......cceccceccceeves 10

REASONS FOR GRANTING THE WRIT .......--+-e00% 13

Ne os cine cae bs cau beensdve Weds ¥e—% 23

Eg os os ae oe dee ts treavnnds ae enes la

RE Tc puradeewseece vs bweeecesre 90004 lb

a eS oF gavades de deat wesesensoesses Ic

ii

TABLE OF AUTHORITIES

PAGE |

I. CAsEs: |

Bon Air Hotel, Inc. v. Time, Inc., 426 F. 2d 858

Me ER hoe ee ae ke ee Ke 18-19, 22

Bridges v. California, 314 U.S. 252 ........... 16

Cantrell v. Forest City Publishing Co., 484 F. 2d

See Chee: Ms Oe Se ec Te A ee hb 19

Commonwealth v. Wiseman, 356 Mass. 251, 249

N. E. 2d 610, certiorari denied, 398 U.S.960.. 19

Cullen v. Grove Press, Inc., 276 F. Supp. 727

ae CN acc reGanceeseekes near eke’

Curtis Publishing Co. v. Butts, 388 U.S. 130.... 13

Dietemann v. Time, Inc., 449 F.2d 245 (C.A.9). 19

Firestone v. Time, Inc., 460 F. 2d 712 (C. A. 5),

-certiorari denied, 409 U. S. 875 .......... 18, 22

Gertz v. Robert Welch, Inc., 471 F. 2d 801 (C.A.

7), aff g 322 F. Supp. 997 (N. D. Ill.), certiorari

granted, 410 U.S. 925, argued November 14,

. ge Si yg A ere 18

Goldman v. Time, Inc., 336 F. Supp. 133 (N. D.

sth ae cde chee eskens be keneaed beuauke 18

Gordon v. Random House, Inc., 349 F. Supp. 919

EE Sees witedas éasuagneeeaena cake 18

Grant v. Esquire, Inc., F. Supp. (72

Civ. 1041, Nov. 27, 1973) (S. D. N. Y.) .... 20

Griswold v. Connecticut, 381 U.S. 479 ......... 19

Humiston v. Universal Film Manufacturing Co.,

189 App. Div. 467, 178 N. Y. S. 752 ......... 19

Jenkins v. Dell Publishing Co., 251 F. 2d 447

(C. A. 3) (en banc), certiorari denied, 357 U. S.

OE Sa haveeb codes anaes h ames casareetaar 19, 20

Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 .. 20, 21

Tiicasicnnasesceindicstiadahliciahabaiadealaa a

ili

PAGE

Kent v. Pittsburgh Press Co., 349 F. Supp. 622

Se MUGS bi aise 65 kod bcuoce aad ence 17, 18

Klein v. McGraw Hill, Inc., 263 F. Supp. 919

Se Re vacekedccsahadeoued<cs Le 19

Man v. Warner Bros., Inc., 317 F. Supp. 50 (S. D.

eS FR Ra epi a ENS 17

Menzie v. Funt, Docket No. L 39093-69 (Super.

Ss Ws Re cn davauc uh cece sus

Mistrot v. True Detective Publishing C. orp., 467

ak Te eee eee 20

Murray v. New York Magazine Co., 27 N. Y. 2d

406, 318 N. Y. S. 2d 474, 267 N. E. 2d 256... 19

New York Times Co. v. Sullivan, 376 U. S. 254. .13, 15

Paulsen v. Personality Posters, Inc., 59 Misc. 2d

444, 299 N. Y. S.2d 501 (Sup. Ct. N. ¥. Co.) .. 20

Pickering v. Board of Education, 391 U.S. 563... 14

Red Lion Broadcasting Co. v. FCC, 395 U. S.

BE MEDCo eRe ekeee Gok co 20

Rosenbloom v. Metromedia, Inc., 403 U. S. ;

Re Pe Or PP passim

Roth v. United States, 354 U.S. 476 ........... 15

Sellers v. Time, Inc., 299 F. Supp. 582 (E. D. Pa),

aff'd on grounds of state law, 423 F. 2d 887,

certiorari denied, 409 U.S. 830 ............. 18

Sidis v. F-R Pub. Corp., 113 F. 2d 806 (C. A. 2),

certiorari denied, 311 U.S. 711 ............. 19

Smith v. Goro, 66 Misc. 2d 1011, 323 N. Y. S. 2d

TF TN Es TR. i Saeco cevcnccctacans 19

Thornhill v. Alabama, 310 U.S. 88 ............ 15

Time, Inc. v. Hill, 385 U. S. 374 .......... passim

Washington Post Co. v. Keogh, 365 F. 2d 965

(D. C. Cir.), certiorari denied, 385 U.S.1011.. 22

Winters v. New York, 333 U. S. 507 .......... 20

iv

PAGE

II. MIscELLANEOUS

FEDERAL STATUTE

es IE a 5 ws sn edn pnw ely oa ba vince’s 2

Prosser, Torts (4th ed. 1971) $117 ............ 10

Réstatement 2d, Torts § 652C (Tent. Draft No. 13,

EE ose he CEES 00-65 Cc ad oe ous os age ese 10

Unrtep States ConsTITUTION

EE og cate cinen abate nodes passim

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

WaADLEIGH-MauRICE, Ltp. and

Warner Bros., INc.,

Petitioners,

Vv.

THOMAS TAGGART

PETITION FOR A WRIT OF CERTIORARI —

TO THE UNITED STATES COURT OF —

APPEALS FOR THE THIRD CIRCUIT

Petitioners pray that a writ of certiorari be issued to

review a judgment of the United States Court of Appeals

for the Third Circuit that reversed a judgment of the

United States District Court for the District of New Jersey

dismissing respondent’s complaint.

Opinions Below

The oral opinion of the district court is unreported; it

is set out together with the court’s written order and judg-

ment in Appendix A. The opinion of the court of ee

is not yet reported; it is set out in Appendix B.

2

Jurisdiction

The judgment of the court of appeals was entered on

September 21, 1973. Petitioners filed a timely petition for

rehearing en banc which was denied by an order dated

October 24, 1973. (A copy of said order is included in

Appendix B.) On January 16, 1974, Mr. Justice Brennan

entered an order extending petitioners’ time to file this peti-

tion to and including February 21, 1974. (A copy of Mr.

Justice Brennan’s order is reproduced in Appendix C.)

§ 12 oe of this Court is invoked under 28 U.S.C.

1254.

Questions Presented

1. Does this action escape the rule of Time, Inc. v.

Hill, 385 U.S. 374, and Rosenbloom v. Metromedia, Inc.,

403 U.S. 29, that the First Amendment bars a suit for

invasion of privacy brought by a private individual arising

out of an admittedly truthful and accurate report of his

involvement in an event of admitted significant public in-

terest, because respondent claims that petitioners’ agents

selected him from among those present at the event, inter-

viewed him before motion picture cameras and included

the complete interview in a documentary film about the

event which has been released on a commercial basis to the

general public?

2. In an action for invasion of privacy growing out of

an event of admitted public interest where the defense of

constitutional privilege is asserted, is it error to segregate

a single incident from the totality of circumstances which

makes up the event and determine whether it, standing alone,

is an event of public interest warranting application of the

rule of Time, Inc. v. Hill, supra and Rosenbloom v. Metro-

media, Inc., supra, to an accurate and truthful recounting

thereof ?

3

3. Where one is selected from a crowd at an event of

admitted public interest and is filmed and interviewed in

connection with his participation in that event and receives

no remuneration therefor, the interview being thereafter

accurately reproduced in a commercial, documentary motion

picture about the event, allegedly to the financial benefit of

the producer and distributor of the film, may he, consistent

with the First Amendment as construed by this Court,

maintain an action for invasion of privacy?

4. Did the district court err in granting petitioners’ mo-

tion for summary judgment dismissing the complaint ?

Constitutional Provision involved

That portion of the First Amendment to the United

States Constitution involved herein reads as follows:

“Congress shall make no law . . . abridging the free-

dom of speech, or of the press...”

Statement of the Case

1. Proceedings Below.

Respondent Thomas Taggart (plaintiff below) com-

menced this diversity action for invasion of privacy in June

1970 by filing a complaint in the United States District

Court for the District of New Jersey. The complaint al-

leges that he was sent by his employer, the Port-O-San

company, a corporation engaged in the business of furnish-

ing and servicing portable latrines, to Bethel, New York

in August 1969 to service the latrines supplied by the com-

pany to the promoters of the Woodstock Festival. He al-

leges that while engaged in his labors petitioners’ agents

engaged him in a conversation which was recorded on film

and subsequently used in the motion picture Wocdstock.

He alleges that his inclusion in the film has subjected him

to public ridicule and embarrassment. For this purported

4

invasion of his right to privacy, respondent seeks $250,000

compensatory damages and $1,000,000 punitive damages.

Petitioners answered denying liability primarily on the

ground that since the motion picture Woodstock was a true,

accurate and non-fictional recounting of a newsworthy

event which aroused great public interest, the decisions of

this Court construing the First Amendment to the Consti-

tution barred the relief sought.

The parties conducted discovery, including respondent’s

deposition, and in October 1971 petitioners filed a motion

for summary judgment supported by affidavits and volu-

minous exhibits. On November 8, 1971 the district court

viewed an 18 minute segment of the three hour film, which

included the 2%4 minute interview of respondent, and heard

oral argument on the motion. The court (Hon. Frederick

B. Lacey) announced from the bench that the motion would

be granted. An order dismissing the complaint was duly

entered on January 6, 1972 and respondent appealed.

The Third Circuit Court of Appeals directed that the

appeal be submitted on July 2, 1973 without oral argument

before a two-judge panel. On July 11, 1973 that panel (Cir-

cuit Judges Gibbons and Hunter), without viewing the film,

filed an opinion and judgment reversing the judgment of

the district court. Petitioners thereupon filed a timely peti-

tion for rehearing or rehearing en banc. On August 7,

1973, the Third Circuit granted the petition for rehearing,

vacated the July 11, 1973 judgment and directed the appeal

be heard before the original panel plus Circuit Judge Van

Dusen. On September 5, 1973 the court viewed the se-

quence of the motion picture Woodstock which had been

shown to the district court and heard oral argument. On

September 21, 1973, by a split decision (Judge Van Dusen

dissenting) the court again reversed the judgment of the

district court and ordered the matter remanded for trial.

The majority opinion, authored by Judge Gibbons, was

5

identical to the vacated July 11 opinion, except that a final

paragraph was added which dealt with Judge Van Dusen’s

dissenting opinion. Petitioners’ timely petition for rehear-

ing en banc was denied by an order dated October 24, 1973.

2. The Undisputed Facts.

A. The Woodstock Festival. The Woodstock Music

and Art Festival (commonly known as the “Woodstock

Festival”), which was held in Bethel, New York between

August 15 and 17, 1969, brought together approximately

500,000 young people for three days of “peace and music”.

The Festival presented performances by the most prominent

attractions in the rock music field. But the migration of

500,000 young Americans from all over the United States

to » small farm in the Catskill Mountains, which turned a

«ty farm into the third largest city in New York State,

was an event of far more significance than just another

music festival. The problems of water, food, sanitation,

health, law enforcement, weather, living conditions, trans-

portation and the like rendered the Festival the ma jor news

event of that August weekend. The Festival received na-

tional and international news coverage by all the media. For

example, the New York Times featured the story on the

front page in its August 16, 17, 18, 19 and 25 issues; Life

magazine published a special 64 page issue devoted exclu-

sively to the Festival; and the television networks included

stories on the event in their national news telecasts on

August 16 and 18.

1The facts set out herein are taken from the respondent’s deposi-

tion, the uncontroverted affidavits submitted in support of the motion

for summary judgment, including exhibits, and the actual filmed inter-

view of respondent, as included in the motion picture Woodstock,

which was viewed by both of the courts below. All quotations from

newspapers or magazines are taken from materials submitted to the

district court in support of petitioners’ motion for summary judgment.

6

Beyond that, the Woodstock Festival was also a socio-

political event which some regard as the efflorescence of

the ethic of the post-World War II generation. It was the

ultimate statement of the attitudes, mores and philosophy

of the generation that came of age in the sixties. As Time

magazine noted in its August 29, 1969 issue, the “real sig-

nificance of Woodstock can hardly be overestimated.” The

Festival was “the moment when the special culture of U.S.

youth of the ’60s openly displayed its strength, appeal and

power,” and as such “it may well rank as one of the signif-

icant political and sociological events of the age.” (Page

32). The adherents of the life-style and socio-political

philosophy which manifested itself during the Festival are

to this day referred to as members of the “Woodstock

Nation.”

B. The Film. The motion picture Woodstock accu-

rately reports the events which took place at the Festival.

It was filmed and edited as a “news reportage documentary

feature’’ and includes no fictional or staged sequences of

any kind. The events were captured for the film’s producer,

petitioner Wadleigh-Maurice, Ltd., by 14 camera crews

under the direction of Michael Wadleigh. In addition to

the Wadleigh-Maurice, Ltd. personnel there were also pres-

ent many cameramen and soundrecorders from television

stations, news bureaus and the print media. Materials

from these sources were acquired by the producer to be

used with their own film in the final editing process. Some

120 hours of film were reviewed and edited to a length

suitable for public exhibition. In the end, a three hour

and four minute documentary emerged.

The film was released in New York on March 27, 1970

and was subsequently distributed throughout the United

*Affidavit of Robert Maurice dated September 14, 1970.

7

States by petitioner Warner Bros., Inc. The film received

wide critical acclaim and was awarded the “Oscar” by the

Academy of Motion Picture Arts and Sciences as the best

feature length documentary of 1970.

The film focuses alternatively on the performances of the

professional musicians and the doings of the hundreds of

thousands of people who came to, lived and worked at the

Festival. “The blazing excitement generated by the musi-

cians is cooled by footage in which the kids, the adults in

the nearby towns, and the festival promoters are inter-

viewed.”* As producer Robert Maurice explains in his

affidavit, “[s]ince the significance of Woodstock was the

joining and mixing of people, the film. .., to be accurately

representational, had to include facts and events relating to

individuals.” The result is a documentary film which pre-

sents “an accurate report of the festival.” (Ibid) It is also

an artistically valid and successful work of the cinemato-

graphic art—witness the Oscar it won. But it is something

more “than just a documentary record of a newsworthy

event” and an artistic triumph, Woodstock “is not so much

a documentary film as it is a document” for future his-

torians and sociologists.* In a word, “Woodstock is an im-

portant film because it is a picture about one of America’s

most important recent events.”®

C. Respondent’s Appearance in the Film.” Respondent

was approached by two agents of petitioner Wadleigh-

Maurice, Ltd., while he was engaged in servicing the Port-

O-San latrines at the Woodstock Festival. He was filmed

— Scholastic, May 18, 1970, p. 24.

®Mademoiselle, June 1970, p. 170.

*Catholic Film Newsletter, April 15, 1970.

*Petitioners are lodging with the Clerk of the Court the 18 minute

reel of film from the motion picture Woodstock which was viewed by

= P—agy below. It includes respondent’s 2% minute appearance in

8

and interviewed while engaged in his labors, and he was

aware of the fact that he was being filmed. While respond-

ent did not know what use would be made of the film, he

did see the camera and made no objection to being filmed

and questioned.®

The sequence involving respondent which appears in the

motion picture Woodstock lasts about two minutes and 15

seconds. A viewing of the film will reveal that respondent

actually initiated the conversation prior to being asked any

questions by petitioners’ agents. The conversation focused

on the toilet facilities being serviced for use by persons at

the Festival and respondent’s volunteered statement as to

his general attitude toward being at the Festival and work-

ing for the “kids.” The text of the entire sequence is as

follows:

Taggart: “Okay.

Somebody left their cane in here.

Some poor fellow will come looking

for his cane.”

Male Voice: “You're getting a little behind on this

job aren’t yuh?”

Taggart: “Oh, they’ve been behind right along,

besides it’s not the idea of being be-

hind it’s you just can’t keep up that’s

what it is.”

Male Voice: “Usin’ a-quite a bit o’ that stuff, huh?”

[Referring to a spray. ]

Taggart: “Yeah. That helps give yuh a little

pleasanter, uh, odor, you know. Yeah,

with the disinfectant in there and you

®Q. You knew you were being photographed while you were being

photographed? A. Yes. Q. Did you ever tell the two gentlemen. who

were photographing you that you did not want your picture taken?

A. No.” (Deposition of Thomas Taggart, p. 45.)

9

put your deodorant bars in, makes it

a little more pleasanter to go in there

an’ use it.

Taggart: “That is it, gentlemen.”

Male Voice: “Well, you’re doin’ a good job here.

Taggart: “Thank you very much. [Laughs]

Glad to do it for these kids.

My son’s here too.

An’ I got one over in Viet Nam too.

He’s up in the DMZ right now.

Flyin’ helicopters.

Okay, see yuh later.”

Respondent concedes that the sequence is a truthful,

accurate, complete recording of the interview, which has

not been changed or distorted in any way by editing

techniques.”

The sequence in which respondent appears was noted in

some of the press reaction to the film. Kathleen Carroll of

the New York Daily News called it the “funniest scene”

in the film. Senior Scholastic called it the “best of the

interviews” and called respondent a “proud” man. Craig

McGregor, writing in the New York Times of April 19,

1970, noted the significance and irony of the circumstances

on that August 1969 weekend when hundreds of thousands

of America’s young were seeking peace at Woodstock while

an equal number were making war in Viet Nam: “... the

man who is the real schizophrenic hero of Woodstock [is]

the Port-O-San man who empties the latrines of the

beautiful people and has one son there at Woodstock and

another flying a DMZ helicopter in Vietnam.”

%*. Have you seen the motion picture ‘Woodstock’? A. Yes,

I did. Q. Is the scene depicted therein which you allege contains your

picture, an accurate reproduction of the interview that had with

these two gentlemen? A. Yes, I would say it is...” ( ition of

Thomas Taggart, p. 13.)

10

3. The Decisions Below.

Respondent’s briefs to the courts below both concede, in

the same language, that he “does not claim that the segment

of film of which he complains was fictionalized, nor does he

contend that the Music Festival itself was not newsworthy.”

(Briefs, p. 6.) Respondent also concedes that if petitioners’

agents had merely picked him out of the crowd with their

cameras, filmed him in the performance of his labors and

subsequently included that film in the motion picture

W oodstock, he would have no claim for invasion of privacy.

(See Appendix B at 7b, 13b.) Rather, respondent seeks

redress because he was drawn out of the multitude by

petitioners’ cameramen and interviewed by them with the

resulting film being used by petitioners in a commercial

motion picture. He claims that his right of privacy was

infringed by thus focusing public attention on him in a

commercial motion picture, to his embarrassment and

petitioners’ financial gain.

Petitioners conceded below, and concede here, that re-

spondent was “drawn out” and selected by their cameramen

for an interview and that petitioners’ film editors chose to

include the sequence in the film as released to the public.

The argument advanced was that neither fact was of con-

stitutional significance and as a matter of law respondent

could not recover because of the use of the interview in the

film.

District Judge Lacey apparently viewed respondent’s

claim as seeking redress for the deliberate appropriation of

respondent’s visage and personality in order to gain a profit

without compensation to him.’? While he thought “there is

still an area [of privacy] where that [appropriation for fi-

nancial benefit] is not protected by the First Amendment

See Restatement 2d, Torts §652C (Tentative Draft No. 13,

1967) ; Prosser, Torts (4th ed. 1971) § 117 at 804-807.

11

cases,” this case did not fall on that side of the line. (Ap-

pendix A at 3a.)

By a divided vote, the court of appeals reversed. Focus-

ing on the fact that the film Woodstock was a commercial

venture, the majority opinion apparently holds that where

one “deliberately draws” into “conversation” a participant

in a newsworthy event “for the purpose of making him an

inadvertent performer in a [film] sequence intended to be

exploited for its artistic effect” (Appendix B at 7b) the

First Amendment does not bar a suit for damages even

if the sequence used in the motion picture is a truthful

and accurate recounting of the conversation.

Judge Gibbons accurately observes that the district

court’s grant of summary judgment in favor of petitioners

was based on a holding that “because Taggart was a par-

ticipant in a newsworthy event” he was “outside the pro-

tection” of New York’s statutory or New Jersey’s com-

mon law right of privacy. (Jbid)" Without the citation

of any supporting authority, that conclusion is held to have

been erroneous as being “predicated upon a more absolutist

interpretation of the first amendment than has yet been

espoused by a majority of the Supreme Court.” (Appendix

B at 9b.)

The majority opinion clearly implies that since re-

spondent’s contribution to the Woodstock Festival amounted

to nothing more than the performance of ordinary labor,

which was in and of itself not a matter of public interest,

the defense of constitutional privilege does not apply.

There was no dispute in the record before the courts

below as to the facts and events giving rise to this litigation.

The parties have, however, characterized or labeled those

11In order to decide the constitutional issues raised by the motion

for summary judgment it was not necessary that the courts below

resolve the issue of choice of law, and neither did.

SSS

12

facts in different ways. Respondent contends the facts of

record cast him in the role of one who was “drawn out and

made an involuntary performer” in a commercial venture.

Petitioners counter that he was “a mere participant in a

newsworthy event.” (Appendix B at 8b.) Focusing on

this battle of labels and ignoring the record,” the majority

of the court of appeals concluded that the case should be

remanded for a jury trial to resolve “disputed fact issues.”

(Appendix B at 9b.)

Judge Van Dusen’s dissent is total. Cutting through the

battle of labels to the heart of the case, he wrote:

“,..the central issue before the district court was

whether the rule of Time, Inc. v. Hill, 385 U.S. 383

(1967), applied to the facts of this case. The question

of whether or not Mr. Taggart was a participant in

a newsworthy event, even if properly characterized as

one of fact, involves a constitutional decision as to the

proper application of a First Amendment standard.”

(Appendix B at 10b-11b.)

Since respondent’s claim for relief because he was “drawn

out” raises the issue “whether the brief questioning of Mr.

Taggart in the midst of the Woodstock Festival was an

event of public interest,” Judge Van Dusen concludes that

this case was an appropriate one for summary disposition.

(Appendix B at 12b-13b.)

_ Judge Van Dusen’s view of the constitutional issue is

simply that “it seems clear that this case falls within the

rule of Time, Inc. v. Hill, supra.” (Appendix B at 13b.)

12. est there be any further confusion arising from the use of

different labels applied to the same facts, petitioners concede that

respondent was drawn out in the sense of being chosen, that the

interview of respondent was elicited by their agents, and that during

‘the interview respondent became an active subject or “performer”

rather than a passive face in the crowd. Petitioners’ submission is that

no matter how the facts are characterized the events are non-action-

able under constitutional precepts.

SNS PSE PERMANENTE A ERT CT ER SET ER SERN ce

13

REASONS FOR GRANTING THE WRIT

This case warrants review by this Court because it

raises important issues under the First Amendment and the

decisions of this Court construing that constitutional pro-

scription, primarily Time, Inc. v. Hill, 385 U.S. 374 and

Rosenbloom v. Metromedia, Inc., 403 U.S. 29. It is peti-

tioners’ submission that the decision of the majority of the

court of appeals conflicts with the prior decisions of this

Court and with every lower court decision determining

similar cases. On a more basic level, petitioners submit that

the decision below was clearly wrong and that unless re-

versed by this Court may serve as the starting point for a

significant departure from thus far unquestioned principles

governing the application of the First Amendment’s speech

and press clause. Finally, this case warrants review be-

cause it presents issues of importance to a wide variety of

interests operating under the protective shield of the First

Amendment, namely film makers, journalists (including

print, radio and television), and authors of non-fiction

works. Unless reviewed and reversed, the decision below

may well inhibit the way in which they report events of

general public interest.

1. In a series of decisions beginning with New York

Times Co. v. Sullivan, 376 U.S. 254, this Court determined

that the First Amendment guarantees of free speech and

press constitute a constitutional defense to the torts of

‘defamation and invasion of privacy. See Curtis Publishing

Co. v. Butts, 388 U.S. 130; Rosenbloom v. Metromedia,

Inc., 403 U.S. 29; and Time, Inc. v. Hill, 385 U.S. 374.

These civil actions have been limited by a rule of constitu-

tional dimension which holds that if a protected form of

speech constitutes a genuine attempt to communicate with

others concerning matters of “public or general interest”

then liability may not be founded upon that exercise of First

14

Amendment rights. Liability can be imposed only when

what appears to be an attempt to communicate on matters

of public interest is a “sham” in that the speaker knows his

statements are false or speaks with reckless disregard of

whether they are true or false.

With specific reference to claims for invasion of pri-

vacy, this Court held in Time, Inc. v. Hill, supra, that the

constitutional protections for speech and press preclude the

imposition of tort liability “to redress false reports of mat-

ters of public interest in the absence of proof that the de-

fendant published the report with knowledge of its falsity

or in reckless disregard of the truth.” 385 U.S. at 388

(emphasis supplied)."* In Rosenbloom v. Metromedia, Inc.,

supra, in the defamation context, this Court made it clear

beyond further contention that in determining the applica-

bility of the constitutional privilege the focus must be ex-

clusively on the event itself and not the nature of the

individual participants.

“Tf a matter is a subject of public or general interest,

it cannot suddenly become less so merely because a pri-

vate individual is, involved, or, because in some sense the

individual did not ‘voluntarily’ choose to become involved.

The public’s primary interest is in the event; the

public focus is on the conduct of the participant and the

content, effect, and significance of the conduct, not the

participant’s prior anonymity or notoriety. ... We

honor the commitment to robust debate on public issues,

which is embodied in the First Amendment, by extend-

ing constitutional protection to all discussion and com-

munication involving matters of public or general

concern, without regard to whether the persons involved

are famous or anonymous.” 403 U.S. at 43-44.

18S¢e also Pickering v. Board of Education, 391 U.S. 563, 573.

15

These rules are premised on certain basic principles

which govern in all cases where First Amendment rights

are at stake. First, the constitutional safeguard “was fash-

ioned to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by the

people.” Roth v. United States, 354 U.S. 476, 484. Second,

the Amendment evinces “a profound national commitment

to the principle that debate on public issues should be un-

inhibited, robust, and wideopen...” New York Times Co.

v. Sullivan, supra, 376 U.S. at 270. Third, “[f]reedom of

discussion, if it would fulfill its historic function in this

nation, must embrace all issues about which information is

needed or appropriate to enable the members of society to

cope with the exigencies of their period.” Thornhill v. Ala-

bama, 310 U.S. 88, 102. Fourth, “[t]hose guarantees are

not for the benefit of the press so much as for the benefit of

all of us. A broadly defined freedom of the press assures

the maintenance of our political system and an open

society.” Time, Inc. v. Hill, supra, 385 U.S. at 389.

The rule of constitutional privilege announced in Time

and Rosenbloom is also reflective of the fear that absent

a strict rule of constitutional privilege the media will, in

order to avoid the risk of large verdicts and protracted liti-

gation, engage in “self-censorship and thus create the

danger that the legitimate utterance will be deterred.”

Rosenbloom v. Metromedia, Inc., supra, 403 U.S. at 50.

Accord, Time, Inc. v. Hill, supra, 385 U.S at 389; New

York Times Co. v. Sullivan, supra, 376 U.S. at 279.

2. Within this general context, the first question in this

case that one must resolve is what constitutes a matter of

public concern and interest. Petitioners submit the concept

is exceedingly broad and flexible and includes within its

parameters the thoughts and activities of all who in any

16

way participated in the Woodstock Festival. As this Court

explained in Time, Inc. v. Hill, supra, 385 U.S. at 388:

“The guarantees for speech and press are not the

preserve of political expression or comment upon public

affairs, essential as those are to healthy government.

One need only pick up any newspaper or magazine to

comprehend the vast range of published matter which

exposes persons to public view, both private citizens and

public officials. Exposure of the self to others in vary-

ing degrees is a concomitant of life in a civilized

community. The risk of this exposure is an essential

incident of life in a society which places a primary value

on freedom of speech and of press.”

Even if the Woodstock Festival is regarded as nothing

more than a large, weekend gathering of rock music fans

and musicians the thoughts and activities of those present

come within the rubric of subject of public concern and

interest so that reports on what transpired are constitution-

ally protected. “No suggestion can be found in the Con-

stitution that the freedom there guaranteed for speech and

the press bears an inverse ratio to the timeliness and im-

portance of the ideas seeking expression.” Bridges v. Cal-

sfornia, 314 U.S. 252, 269; Time, Inc. v. Hill, supra, 385

USS. at 388.

As the court of appeals viewed this case, respondent

was an individual of no public consequence performing a

task of no public consequence so that the rules of constitu-

tional privilege do not apply. Petitioners submit that that

conclusion is in conflict with the opinions of this Court,

especially Time, Inc. v. Hill and Rosenbloom v. Metro-

media, Inc. Respondent concedes that the Woodstock Fes-

tival was a newsworthy event of public interest. Since

the filmed interview of respondent focused on at least

three integral and essential elements involved—namely,

17

1) providing adequate sanitation facilities for 500,000 people

who suddenly assembled in a barren pasture; 2) the so-

called “generation gap”; and 3) the fact that the brothers

of those attending the festival of “peace and music” were

simultaneously embroiled in a war in Viet Nam—it is a

form of protected speech.

“The existence, then, of a reasonable relationship be-

tween the general subject matter of .. . [Woodstock] and

the reference to the plaintiff, and a reasonable coextensive-

ness of the subject matter and the reference, . . . renders

. . . [respondent’s] prior personal anonymity or notoriety

unimportant.” Kent v. Pittsburgh Press Co., 349 F. Supp.

622, 627 (W.D. Pa.). While respondent did not open the

door to the reporting of any and all of the details of his

private life by his attendance at an event of public interest,"

the Constitution mandates that his actions at and thoughts

on the Woodstock Festival can be truthfully reported by the

media without fear of tort liability.

A number of other courts have faced analogous claims

for relief, either in defamation or privacy, brought by non-

public individuals contending that a report on a certain

aspect of their lives, thoughts or activities were of no public

interest or concern and therefore not constitutionally privi-

leged. We are unaware of any decision which has upheld

such a contention; in this regard the opinion of the court

of appeals herein is unique.

In Man v. Warner Bros., Inc., 317 F. Supp. 50

(S.D.N.Y.) relief was summarily denied to a man who

came to the Woodstock Festival looking for his son and

was asked to play mess call on a flugelhorn he was carrying,

which incident was included in the film Woodstock. In

14Petitioners do not contend that no area of a person’s activities

falls outside the area of public or general interest, see Rosenbloom v.

Metromedia, Inc., supra, 403 U.S. at 44 n. 12, 48; rather,

submit that the specific filmed sequence here at issue does not fall

outside that protected area.

18

Cullen v. Grove Press, Inc., 276 F. Supp. 727 (S.D.N.Y.),

injunctive relief was denied correctional officers of the

Bridgewater Correctional Institution who objected to the

inclusion of scenes showing them going about their labors

in the documentary film entitled the Titicut Follies which

was being commercially shown in New York. Summary

judgment was granted defendant in Goldman v. Time, Inc.,

336 F. Supp. 133 (N.D. Cal.), where plaintiffs complained

about the inclusion in Life magazine of their photographs

and an interview in connection with a story about young

Americans who had left the United States and were wander-

ing through Europe. The same result was reached in Kent

v. Pittsburgh Press Co., supra, which arose from a story

about prison conditions and reform which briefly focused

on a prisoner who was being released at the time the re-

porter was visiting Western Penitentiary. In Gordon v.

Random House, Inc., 349 F. Supp. 919 (E.D. Pa.) the

result is again the same in an action growing out of the

publication of a book entitled The Negroes and the Jews

which in a prologue focuses on the history, plight and views

of one Max Gordon, a simple Jewish merchant in North

Philadelphia. See also Firestone v. Time, Inc., 460 F. 2d

712 (C.A. 5), certiorari denied, 409 U.S. 875 (reference

to woman’s retention of private detective to conduct sur-

repticious surveillance of her husband in Life magazine

story on electronic eavesdropping) ; Sellers v. Time, Inc.,

299 F. Supp. 582 (E.D. Pa.), aff'd on grounds of state law,

423 F. 2d 887, certiorari denied, 400 U.S. 830 (story about

businessman-golfer who hit a golf ball backwards result-

ing in the loss of an eye by a playing partner) ; and Gertz

v. Robert Welch, Inc., 471 F. 2d 801 (C.A. 7), aff'g 322

F. Supp. 997 (N.D. Ill.), certiorari granted, 410 U.S. 925,

argued November 14, 1973, 42 U.S.L.W. 3303 (references

in magazine article to attorney conducting civil damage suit

on behalf of young man killed by police officer). Cf., Bon

19

Air Hotel, Inc. v. Time, Inc., 426 F. 2d 858 (C.A. 5);

Cantrell v. Forest City Publishing Co., 484 F. 2d 150

(C.A. 6).*

3. It is not petitioners’ contention that the constitu-

tional privilege is so sweeping as to foreclose liability in

every case involving the truthful report of an event or sub-

ject of admitted public interest, for that is not the case at

bar. Where the report contains revelations “so intimate and

so unwarranted in view of the victim’s position as to outrage

the community’s notions of decency,” Sidis v. F-R Pub.

Corp., 113 F. 2d 806, 809 (C.A. 2), certiorari denied, 311

U.S. 711; Time, Inc. v. Hill, supra, 385 U.S. at 383 n. 7, or

involves an intrusion into the bundle of constitutionally pro-

tected private rights given voice and protection in Griswold

v. Connecticut, 381 U.S. 479, liability in tort may well lie.

See, e.g., Commonwealth v. Wiseman, 356 Mass. 251, 249

N.E. 2d 610, certiorari denied, 398 U.S. 960; Smith v.

Goro, 66 Misc. 2d 1011, 323 N.Y.S. 2d 47 (Sup. Ct. N.Y.

Co.). Cf., Dietemann v. Time, Inc., 449 F. 2d 245 (C.A. 9).

However, photographing respondent at his job of cleaning

latrines can hardly be regarded as offensive to community

standards of decency. Similarly, this case does not involve

intrusion upon the private aspects of respondent’s life

“since, by hypothesis, the individual is involved in matters

of public or general concern.” Rosenbloom v. Metromedia,

Inc., supra, 403 U.S. at 48.

4. What remains is respondent’s rather amorphous

claim that because some sagnrene Ge anvil of him wd

urray

ee ne, 27 NY. 1406, 318 NYS 2d 474, 267 N.E. 2d 256;

Humiston v. Univer. oe cove Sere se 189 App. Div. 467,

178 N.Y.S. 752; Jenkins v. Dell Publishing Co., 25 F. 2d 447

(C.A. 3) (en banc), certiorari denied, 357 U.S. 921; Klein v.

McGrew Hill, Inc., 263 F. Supp. 919 (D.D.C.).

20

cluded in Woodstock as humorous, and since the film was

commercial entertainment, this case involves an invasion

of privacy by appropriating respondent’s visage and per-

sonality for petitioners’ financial advantage without re-

muneration to him. This theory was accepted by the court

below and has already been reinforced by a subsequent dis-

trict court opinion which concludes that “the message of

Taggart appears to be that the First Amendment does not

absolve movie companies—or publishers—from the obliga-

tion of paying their help. They are entitled to photograph

newsworthy events, but they are not entitled to convert

unsuspecting citizens into unpaid professional actors.”

Grant v. Esquire, Inc., F. Supp. (72 Civ. 1041,

Nov. 27, 1973) (S.D.N.Y.).** Petitioners submit that this

theory is clearly wrong and surely dangerous.

Motion pictures are a form of protected speech. Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495, 501. Information

and entertainment are not mutually exclusive categories in

applying the constitutional standard. It is “neither feasible

nor desirable for a court to make a distinction between news

for information and news for entertainment in determining

the extent to which publication is privileged.” Jenkins v.

Dell Publishing Co., supra, 251 F.2d at 451. Accord,

Mistrot v. True Detective Publishing Corp., 467 F.2d 122,

124 (C.A. 5); Winters v. New York, 333 U.S. 507, 510.

Because “[w]hat is one man’s amusement, teaches another’s

doctrine” (ibid), it is not for “any court to pass value judg-

ments predicated upon ephemeral subjective considerations

which would serve to stifle free expression.” Paulsen v.

Personality Posters, Inc., 59 Misc. 2d 444, 450, 299 N.Y.S.

2d 501, 508 (Sup. Ct. N.Y. Co.). See also Red Lion Broad-

casting Co. v. FCC, 395 U.S. 367, 390.

“erage cond @e ended. Oe

a Gly Gantino BN mageiee any axe

Sa a ee enn SSeS Sey ae

21

That Woodstock was produced and distributed by peti-

tioners in order to earn a profit on their investment of time

and money is totally without constitutional significance.

Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. at 501;

Time, Inc. v. Hill, supra, 385 U.S. at 397.

A truthful, non-offensive report of the activities of one

participating in an event of public interest or concern does

not give rise to a claim for remuneration which if not met

will mature into a cause of action for invasion of privacy.

If it did no television or radio newsman, no magazine re-

porter, no documentary film maker could ever again pursue

the personal interview, a “common and important technique

of investigative reporting” (Appendix B at 13b, Judge Van

Dusen dissenting), without fear that the interviewee will

subsequently demand compensation for his “performance”.

Respondent’s point of view, as endorsed by the majority

of the court below, would require that, even as to truthful

reports concerning people or events of public interest, the

press, in order to avoid the censorial threat of suit, would

be required to eschew all interviews of non-public figures

unless all interviewees signed written releases or were paid.

Petitioners submit that this notion is wholly inconsistent

with the constitutional commitment to free press and speech

in an open society. Whereas the “Candid Camera” type of

movie or television show may have to offer remuneration to

those who are photographed and interviewed in “staged”

or fictionalized incidents,” the application of such a rule to

this type of case would cause havoc in the field of jour-

nalism.

While the court of appeals recognized the potential

“chill” to the exercise of petitioners’ First Amendment

™See Judge Van Dusen’s dissent, Appendix B at 13b, and Mensie

v. Punt, Docket No. L 39093—69 (Super. Ct. N.J. Union Co.) aris-

out of just such a staged incident in the motion picture What

You Say to A Naked Lady produced by Allen Funt.

ing

Do

22

rights by its holding, it evaluated that chill in terms only of

the interests of the litigants to this case. It ignored the

rights of the public at large and the potential impact of its

decision on the public’s right to be informed on all matters of

public concern and interest. (See Appendix B at 9b.)

Because the majority below failed to appreciate the fact

that the immunity asserted by petitioners under the First

Amendment was fashioned “more for the protection of the

public generally than it [was] for the publisher himself,”

Firestone v. Time, Inc., supra, 460 F.2d at 719, it failed to

perceive or care about the potential havoc its decision might

cause.

5. Finally, petitioners submit that summary judgment

was the appropriate procedure to resolve the claim of privi-

lege raised by them. It is clear that where a publication

is protected by a rule of constitutional immunity “summary

judgment, rather than trial on the merits, is a proper vehicle

for affording constitutional protection in the proper case.”

Bon Air Hotel, Inc. v. Time, Inc., supra, 426 F.2d at 865.

See Judge Van Dusen’s dissent and the cases cited by him

in Appendix B at 12b. “In the First Amendment area,

summary procedures are . . . essential. For the stake here,

if harassment succeeds, is free debate.” Washington

Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir.), certi-

orari denied, 385 U.S. 1011. As explained in Time, Inc. v.

Hill, supra, 385 U.S. at 389, even the fear of the expense

involved in the defense of protracted litigation “must in-

evitably cause publishers to ‘steer . . . wider of the unlaw-

ful zone’.” Hence, the need for summary proceedings in

this area is plain.

Since “First Amendment questions of ‘constitutional

fact’ compel this Court’s de novo review” of the record in

order to reach constitutional judgments, Rosenbloom v.

Metromedia, Inc., supra, 403 U.S. at 54, this Court may

23

now appropriately review the instant decision of the court

of appeals in order to independently determine whether

as a matter of law the district court was correct in grant-

ing petitioners’ motion for summary judgment.

CONCLUSION

For the foregoing reasons, we urge that the Court

issue a writ of certiorari in order to review the important

issues under the First Amendment raised by this case.

Respectfully submitted,

CHARLES G. MOERDLER

Gary J. GREENBERG

Attorneys for Petitioners

61 Broadway

New York, New York 10006

Of Counsel:

Stroock & Stroock & LavAN

61 Broadway

New York, New York 10006

Crapp & EISENBERG

Rocer S. CLapp

744 Broad Street

Newark, New Jersey 07102

February, 1974

la

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil No. 842-70

TRANSCRIPT OF PROCEEDINGS

MOTION FOR SUMMARY JUDGMENT

Newark, New Jersey

November 8, 1971

THOMAS TAGGART,

Plaintiff,

v.

WapteicH-Maurice, Ltp., and

Warner Bros., INc.,

Defendants.

Before:

Tue HonoraB_eE Frepericx B. Lacey, U.S.D.J.

Pages 31-32

2a

Appendix A

THE Court: Here’s where I come out on this, gentle-

men. Going back to 1890, we recognize that there was at

that time born out of an often-cited law review article the

so-called right of privacy, the article being one by Warren

and Brandeis dealing with New York.

The next eventful happening was the handing down

of the decision we just talked about, the Roberson case.

There the New York Court of Appeals determined that

there was no right of privacy. That was quickly followed

within a year, was it not, Mr. Dershowitz, by the passage

of Sections 50 and 51 of the Civil Rights Law which barred

commercial usage thereafter, and I simplify the language of

the statute, The name, the picture, the portrait; that was

the beginning then of the right of privacy in New York.

Over the years that stood readily unassailable until we

began to get the now long line of cases that teaches that

the right of privacy is subject to the First Amendment,

freedom of speech and press. And, of course, it is that,

really, that brings you two to an impasse here.

Your argument, Mr. Farley, as I understand it, is that

there is more involved here than the classic right of privacy

invasion; that they in fact drew the man out, made him an

involuntary actor and through his participation they are

using him to make money without any compensation to

him.

I react, as Mr. Dershowitz’s remarks indicate, as the

reasonable man might react after seeing the film. I come

to a different conclusion after having seen the film than I

did from reading just the dialogue. It was not so much

a drawing out as to expose him to a substantial participa-

tion in the film. The event fits ina perspective of moving

from one aspect of this festival to the next. He was not

diverted from the work he was doing and brought, so to

3a

Appendix A

speak, up on the stage and made somebody separate and

apart from the fellow who was working at the time they

focused the camera on him. It is a very difficult line to draw.

I believe as you do, as I indicated before the luncheon

recess, that there still is an area left where somebody does

set out deliberately to make somebody participate in gain-

ing a profit without compensation to him. But there is still

an area where that is not protected by the First Amend-

ment cases. I do not think that falls on this side of the

line. I feel that summary judgment is indicated and I will

grant the motion.

4a

Appendix A

ORDER FOR SUMMARY JUDGMENT

This matter being opened to the Court by Roger S.

Clapp, appearing for Clapp & Eisenberg, attorneys for the

Defendants, together with Nathan Z. Dershowitz of the

New York Bar appearing pro hac vice for Stroock &

Stroock & Lavan, of counsel for the defendants, in the

presence of Charles J. Farley, Jr., appearing for Haggerty

& Farley, attorneys for the plaintiff, on November 8, 1971,

being the continued return date of the defendants’ Motion

for Summary Judgment in their favor as to all allegations

of the complaint, upon the ground that the pleadings, dep-

ositions, affidavits and documents on file show palpably that

there is no genuine issue as to any material fact and that

the defendants are entitled to a judgment as a matter of

law, and the Court having heard and considered the argu-

ments of counsel, and having read, reviewed and con-

sidered the pleadings, depositions, affidavits, briefs and

documents on file and having seen in chambers excerpts

of the movie “Woodstock” and being of the opinion that

the defendants are entitled to summary judgment upon all

issues, and for good cause shown:

It is on this 6th day of January 1972.

OrpDERED, that the defendants’ Motion for Summary

Judgment be and it hereby is granted, and that summary

judgment in favor of the defendants and against the plain-

tiff be entered on all issues with costs and disbursements

to be taxed.

/s/ FREDERICK B. LacEey

Frederick B. Lacey, U.S.D.J.

Ib

APPENDIX B

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 72-1531

THOMAS TAGGART,

Appellant,

Vv.

WabLEIGH-MauRrIce, Ltp. and

Warner Bros. INc.,

Appellees.

(D.C. Civil Action No. 842-70)

On APPEAL FroM THE UNITED STATES District Court

FOR THE District oF NEW JERSEY

Submitted Under Third Circuit Rule 12(6) July 2, 1973

Before G1ssons and Hunter, Circuit Judges

Reargued September 5, 1973

Before VAN Dusen, Grssons and Hunter, Circuit Judges

Charles J. Farley, Jr., Esq.

112 South Main Street

Orange, New Jersey

Attorney for Appellant

Roger S. Clapp, Esq.

Clapp & Eisenberg

744 Broad Street

Newark, New Jersey

2b:

Appendix B

Stroock & Stroock & Lavan

Charles G. Moerdler, Esq.

Nathan Z. Dershowitz, Esq.

Stephen A. Block, Esq.

61 Broadway

New York, New York 10006

Attorneys for Appellees

OPINION OF THE COURT

(Filed September 21, 1973)

Grssons, Circuit Judge

This is an appeal from the grant of defendants’ motion

for summary judgment. The pleadings, affidavits, and depo-

sitions on file establish that the appellant Taggart is an

employee of Port-O-San, a corporation engaged in the busi-

ness of furnishing and servicing portable latrines. Taggart

was sent by his employer to Bethel, New York in August,

1969 to service such portable latrines, furnished by Port-O-

San to the promoters of the Woodstock music festival.

While he was servicing the Port-O-San latrines he was, ac-

cording to his complaint and deposition, diverted from that

work and engaged in conversation by agents of defendant

Wadleigh-Maurice, Ltd., who were filming the festival, and

photographed by sound motion picture. Wadleigh-Maurice,

Ltd. during the course of the festival took over 315,000 feet

of film (about 120 hours of viewing). From this 315,000

feet of film a feature length “documentary” was assembled,

which defendant Warner Bros. Inc. undertook to distribute

for commercial viewing. There is no dispute that the festi-

val, the preparation of the film, and its distribution to

theatres were all undertaken for commercial profit-making

purposes. In those parts of the 315,000 feet of film chosen

At oa Eo

3b

Appendix B

for inclusion in the “documentary” and thereby given wide-

spread public dissemination is a sequence of approximately

two minutes depicting Taggart emptying latrines. Tag-

gart’s deposition discloses the circumstances in which he

was photographed:

“Q. Basically, at the time you were at Woodstock

and you were approached by these two men, had you

ever seen them before?

A. No, I never did.

Q. Did you know who they were?

A. No, I have no idea.

Q. How did they engage you in conversation?

A. Well, as I said before, as I was working these

two men just came up and started talking to me. What

are you doing there, I think was the key sentence.

What are you doing there, they said.

Q. You responded to the conversation that ensued?

A. Yes. From there on, I went on about my busi-

ness, about doing my work. As I was, they spoke to me

and asked me what was this, and so forth.

Q. Did you respond to anything they asked you?

A. I responded to the questions they asked me.

Q. You mentioned before that they had cameras.

How big were the cameras they had? Can you show us?

A. They looked like the little square box or some-

thing like that.

Mr. Fartey: Indicating about six inches long.

A. Maybe rectangular.

Q. Do you have a home movie camera yourself at

home?

A. I have one, yes. It would be not in that cate-

gory. It would be more like my son’s. Thomas has

one with a zoom thing on it and stuff like that.

4b

Appendix B

Q. The camera that the man was holding, was that

similar to the camera your son has?

A. It would be something like that.

Q. So the cameras were like home movie type

cameras?

A. Yes.

Q. Did you see any of those large cameras that

they used to depict when they show the news?

A. No.

Q. You didn’t see anything like that?

A. No. Whatever it was they had was strapped.

They had them in a strap on their neck.

Q. A strap to hold the camera?

A. Yes, a little bit of a strap.

Q. In the general vicinity through these days you

were at the festival, were there many people with

cameras of various types?

A. As I recall, I saw different types of cameras.

I wouldn’t say there was a wholesale thing with

cameras there, you know.

Q. At any time did anyone ask your permission to

take the picture?

A. Well, not that they asked me. Nobody came up

to me and said, can I take your picture, nothing like

that. They just came up and started talking. As they

were talking——

Q. Was one talking to you and the other took the

picture?

A. It was a combination. I don’t know if I’m mak-

ing myself clear here...

Q. ‘In relation to the two men taking your picture,

5b

Appendix B

did you know that they were taking it for any public

release?

A. No. [had no idea of that.”

Taggart contends that the sequence in which he was

interrogated while performing his necessary though not

necessarily pleasant employment was edited into the “docu-

mentary” in such a way as to achieve, at his expense, a

comic effect. That this may well have been the intended

and actual effect is supported by evidence in the record of

the reaction of critics. For example, Kathleen Carroll, the

critic, stated “[T]he funniest scene shows the latrine at-

tendant proudly demonstrating his job.” Craig McGregor,

writing in the New York Times, April 19, 1970, stated “...

and the man who is the real schizophrenic hero of Wood-

stock, the Port-O-San man who empties the latrines of the

beautiful people and has one son there at Woodstock and

another flying a DMZ helicopter in Vietnam.” Taggart

contends that while he was engaged in his ordinary work

he was without warning, and without consent, drawn into a

conversation and photographed so that the sequence could

be used as a key part of the theme of the “documentary”

which was being prepared as a commercial enterprise. —

When Taggart learned that he had been included in

the commercial film he protested to the defendants, but they

refused to delete the scene and proceeded to distribute the

film nationwide. As a result, he alleges, he has suffered

mental anguish, embarrassment, public ridicule, and in-

vasion of his right to privacy which has detrimentally af-

fected his social and family life and his employment. His

deposition supports his contention that such ongoing dam-

aging effects have occurred and are continuing. In this

diversity civil action he seeks damages and an injunction

6b

Appendix B

against continued distribution of the offending scene. The

complaint contains a demand for a jury trial. Fed. R. Civ.

P. 38(b).

Moving for summary judgment, the defendant placed

principal reliance on Man v. Warner Bros. Inc., 317 F.

Supp. 50 (S.D.N.Y. 1970). In that case Man, a professional

musician, was at Woodstock, where at 4 A.M. he mounted

the stage and played “Mess Call” on his Flugelhorn. His

performance was photographed by the Wadleigh-Maurice

camera crews, and was edited into the documentary without

his consent. He brought a diversity action for injunctive

relief pursuant to New York’s right of privacy statute,

N.Y. Civ. Rights Law § 51 (McKinney’s 1948), and moved

for a preliminary injunction. The defendant made a cross

motion for summary judgment, which was granted. The

district court recognized that § 51 may not be applied to

afford relief either to a public figure or in a matter of

public interest in the absence of proof that the defendant

published false material with knowledge of its falsity or in

reckless disregard of the truth. E.g., Time, Inc. v. Hill,

385 U.S. 374 (1967). In justification for the grant of sum-

mary judgment the court pointed out (1) that a profes-

sional musician who mounts a stage to give a performance

before an audience of 400,000 is a public figure, (2) that in

any event the depiction of his performance was merely a

factual depiction of his participation in a newsworthy event,

and (3) that plaintiff’s forty-five second performance was

de minimis.

The transcript of the argument on the motion for

summary judgment in this case discloses that the district

court appreciated several distinctions between this case and

Man. First, Taggart was not a professional musician per-

forming before an audience of 400,000. He was an ordinary

Sere eh k eee sk maa el ACA “opt

7b

Appendix B

working man going about his lowly task. Second, the re-

action of the critics suffices to prevent the entry of summary

judgment on a de minimis basis. The latrine sequence ap-

parently makes a significant and memorable contribution

to the film’s overall impact. Thus, if summary judgment is

to be sustained, it must be sustained solely because Taggart

was a participant in a newsworthy event, and as such, out-

side the protection of §51 or some other statutory or

common law right of privacy.’ The district judge recog-

nized, however, that it would be one thing to photograph

Taggart as he went about his duties at a newsworthy event

and to include such a photograph in a factual description

of the event, but quite another thing to deliberately draw

him out in conversation for the purpose of making him an

inadvertent performer in a sequence intended to be ex-

ploited for its artistic effect. Recognizing this distinction,

the district judge viewed the offending film sequence, and

ruled:

“T react, as Mr. Dershowitz’s remarks indicate, as

the reasonable man might read after seeing the film. I

come to a different conclusion after having seen the

film than I did from reading just the dialogue. It was

not so much a drawing out as to expose him toa sub-

stantial participation in the film. The event fits in a

perspective of moving from one aspect of this festival

to the next. He was not diverted from the work he

was doing and brought, so to speak, upon ie stage

and made somebody separate and apart from the fellow

1Taggart resides in New Jersey. The governing law in New

Jersey on the right of privacy from commercial exploitation is dis-

cussed in Canessa v. Kislak, Inc., 97 N.J. Super. 327, 235 A.2d 62

(L. Div. 1967). We do not here reach the issue of which state’s

law governs,

8b

Appendix B

who was working at the time they focused the camera

on him. It is a very difficult line to draw.

I believe as you do, as I indicated before the luncheon

recess, that there still is an area left where somebody

does set out deliberately to make somebody participate

in gaining a profit without compensation to him. But

there is still an area where that is not protected by the

First Amendment cases. I do not think that falls on

this side of the line. I feel that summary judgment is

indicated and I will grant the motion.” (Tr. at 32).

The difficulty with this ruling is that it chooses between

Taggart’s version, that he was drawn out and made an in-

voluntary performer, and the defendants’ version, that he

was a mere participant in a newsworthy event. The court

did so on the basis of a view of a part of the whole film.

The sequence which he viewed undoubtedly was significant

evidence in support of the defendants’ position. But it was

only evidence to be weighed against Taggart’s deposition

and the reaction of the critics. That weighing process was

made before the plaintiff had had the opportunity to

present his full case, and it was made by the judge in a

case in which a jury trial was demanded. Whether Taggart

had been drawn out as a performer rather than merely

photographed as a participant in a newsworthy event is on

this record at best a mixed question of law and fact.

Factual determinations in a §51 case are for the jury.

Garner v. Triangle Publications, Inc., 97 F. Supp. 546

(S.D.N.Y. 1951).

Clearly, then, the record presents disputed fact issues.

We can affirm the grant of summary judgment on such a

record only if we are prepared to hold that as a matter of

law the defendants are entitled to judgment even if Tag-

9b

Appendix B

gart was deliberately drawn out as a performer in a com-

mercial film. Such a ruling would leave very little to § 51

or to any similar statutory or common law right of privacy.

It would be predicated upon a more absolutist interpreta-

tion of the first amendment than has yet been espoused by a

majority of the Supreme Court. But more important, such

a ruling, if it is to be made, should be made on a record in

which the facts have been fully developed. Only with such

a record can the necessary balance between the conflicting

rights of personal privacy and of freedom of expression

properly be struck. We realize that requiring the defend-

ants to defend in a trial rather than to obtain summary

judgment puts them to additional expense, and arguably

subjects their first amendment rights, should those rights

ultimately be held to prevail over Taggart’s right to pri-

vacy, to that much extra “chill.” In the context of the

problem—their commercial exploitation of Taggart’s al-

legedly induced performance—this degree of “chill” seems

to us de minimis when compared with the unsatisfactory

alternative of ruling on a potentially serious conflict be-

tween legally protected rights without a complete record.

Judge Van Dusen, dissenting, urges that where “con-

stitutional fact” is involved a district court may on a

motion for summary judgment, or an appellate court may

on appeal, resolve disputed fact issues. Article III, Section

2 of the Constitution gave the Supreme Court appellate

jurisdiction “both as to Law and Fact”. This clause pro-

duced an adverse public reaction which resulted in the

seventh amendment preserving the right to frial by jury in

civil cases and providing further that “no fact tried by a

jury, shall be otherwise re-examined in any Court of the

United States, than according to the rules of the common

law.” Disputes over “constitutional fact” are no excep-

10b

Appendix B

tion to the seventh amendment. See, e.g., Vandenburg v.

Newsweek, Inc., 441 F.2d 378, 379 (5th Cir.), cert. denied,

404 U.S. 864 (1971), affirming denial of summary judg-

ment. Just as disputed facts in a nonjury case are deter-

mined by trial and not on summary judgment motion, a trial

judge’s decision to instruct the jury with the New York

Times standard or an appellate court’s de novo review of

“constitutional fact” are both made after a full trial on the

contested factual issues. Properly viewed these represent

nothing more than the application of a governing legal

standard to undisputed facts or to facts that are viewed in

a light more favorable to one party. They do not involve

the resolution of such credibility issues as whether or not

Taggart was drawn out or was a willing participant. The

label “constitutional fact” does not permit even an appel-

late court reviewing a full record to resolve credibility

issues.

The judgment of the district court will be reversed and

the case remanded for further proceedings consistent with

this « pinion.

Va‘: Dusen, Circuit Judge, dissenting:

I respectfully dissent and would affirm the granting of

summary judgment by the district court.

The court has today characterized the issue before the

district court as whether Mr. Taggart was “drawn out”

and made an involuntary performer or whether he was a

mere participant in a newsworthy event and concluded that

such factual determinations are for the jury. If this case

involved only the application of the New York statute to

the factual situation presented here, I would agree that

summary judgment was improperly granted.

However, the central issue before the district court was

whether the rule of Time, Inc. v. Hill, 385 U.S. 383 (1967),

LSet aichn Wein Sentai bntm tg

11b

Appendix B

applied to the facts of this case. The question of whether

or not Mr. Taggart was a participant in a newsworthy

event, even if properly characterized as one of fact, in-

volves a constitutional decision as to the proper application

of a First Amendment standard. It must, therefore, be

considered one of “constitutional fact” which the Supreme

Court has said to be subject to de novo review.’ Rosenbloom

v. Metromedia, 403 U.S. 29, 53-54 (1971) (opinion of

Brennan, J.). In New York Times Co. v. Sullivan, 376

U.S. 254, 285 (1964), the Court said:

“This Court’s duty is not limited to the elaboration of

constitutional principles; we must also in proper cases

review the evidence to make certain that those prin-

ciples have been constitutionally applied. This is such

a case, particularly since the question is one of alleged

trespass across ‘the line between speech unconditionally

guaranteed and speech which may legitimately be regu-

lated.’ [Citing case.] In cases where that line must

be drawn, the rule is that we ‘examine for ourselves

the statements in issue and the circumstances under

which they were made to see . . . whether they are of

a character which the principles of the First Amend-

ment, as adopted by the Due Process Clause of the

Fourteenth Amendment, protect.’ ”

It follows that at trial such issues are properly decided by

the judge on a motion for summary judgment, where there

are no other genuine issues of material fact.

1Indeed, in the very cases which first enunciated the First Amend-

ment privilege claimed here, the Supreme Court determined for

itself the question of whether the facts alleged and proved at trial

met the standard as to what kind of public official or public issue

would require a showing of actual malice to allow recovery in a libel

action. See New York Times Co. v. Sullivan, 376 U.S. 254, 270-71

(1964) ; Associated Press v. Walker, 388 U.S. 130 (1967).

12b

Appendizx B

Furthermore, the Supreme Court has stated that in

cases where a First Amendment privilege is claimed under

the doctrine of New York Times Co. v. Sullivan, supra, “as

is the case with questions of privilege generally, it is for

the trial judge in the first instance to determine whether

the proofs show respondent to be a ‘public official’.” Rosen-

blatt v. Baer, 383 U.S. 75, 88 (1966). Lower courts have

generally assumed with little or no discussion that the

question of whether a particular event constituted a matter

of “public interest” is also for the trial judge to determine.

See, e.g., Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858,

861-62 (5th Cir. 1970) ; Wasserman v. Time, Inc., 424 F.2d

920, 922 (D.C. Cir.), cert. denied, 398 U.S. 940 (1970) ;

Time, Inc. v. McLaney, 406 F.2d 565, 566 (5th Cir. 1969) ;

United Medical Laboratories, Inc. v. Columbia Broadcast-

ing System, Inc., 404 F.2d 706, 711-12 (9th Cir. 1968) ;

Cerrito v. Time, Inc., 302 F. Supp. 1071, 1073 (N.D. Cal.

1969) ; Sellers v. Time, Inc., 299 F. Supp. 582, 586 (E.D.

Pa. 1969), aff’d on grounds of state law, 423 F.2d 887

(3d Cir. 1970). As I understand the claim that Mr. Tag-

gart was “drawn out,” the issue is whether the brief ques-

tioning” of Mr. Taggart in the midst of the Woodstock

. .2The text of the dialogue from the film is as follows:

“Taggart: ‘Okay. Somebody left their cane in here. Some

poor fellow will come looking for his cane.’

Bry Voice: ‘You're getting a little behind on this job aren’t

yuh?

“Taggart: ‘Oh, they’ve been behind right along, besides it’s

not the idea of being behind it’s you just can’t keep up that’s

what it is.’

“Male Voice: ‘Usin’ a-quite a bit o’ that stuff, huh? (Re-

ferring to a spray.)

“Taggart: ‘Yeah. That helps give yuh a little pleasanter uh,

odor, you know. Yeah, with the disinfectant in there and you put

136

Appendix B

festival was an event of public interest. A decision on a

motion for summary judgment was, therefore, appropriate.

Turning to the substantive question as to whether that

decision was correct, it seems clear that this case falls

within the rule of Time, Inc. v. Hill, supra. Since no show-

ing of actual malice was made in the trial court, summary

judgment was properly granted.

There is no question that the Woodstock festival itself

was an event of public interest nor that Mr. Taggart, by his

presence there, was a participant in it. Furthermore, coun-

sel for appellant has conceded in oral argument that if Mr.

Taggart had only been filmed and not interviewed, this

action would be barred. I fail to see why the mere fact of

the brief questions asked should alter that result.

There may arise cases where a reporter or film maker

conducts an interview in such a way as to lose the constitu-

tional privilege of Time, Inc. v. Hill, supra. For example,

where an incident is staged, as in the television series

“Candid Camera,” it would not seem to be an event of

public interest. But here Mr. Taggart was simply filmed

going about his ordinary occupation and asked a few ques-

tions that directly related to his participation in, and opin-

ions on, a clearly newsworthy event. This is a common

and important technique of investigative reporting and

should enjoy the same constitutional protection as would a

your deodorant bars in, makes it a little more pleasanter to go in

there an’ use it.

“Taggart: ‘That is it, gentlemen.’

“Male Voice: ‘Well, you’re doing a good job here.

“Taggart: ‘Thank you very much (laughs). Glad to do it for

these kids. My son’s here too. An’ I got one over in Viet Nam

too. He’s up in the DMZ right now. Flyin’ helicopters. Okay,

see yuh later.’ ”

14b

Appendix B

written or filmed account of that event. I would affirm the

district court’s granting of summary judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

15b

Appendix B

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the District of New

Jersey and was submitted under Third Circuit Rule 12(6)

and later argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, filed January 5, 1972, be, and the same is hereby

reversed, and the cause remanded for further proceedings

consistent with the opinion of this Court. Costs taxed

against appellees.

ATTEST:

/s/ Tuomas P. QuINN

Clerk

September 21, 1973

16b

Appendix B

SUR PETITION FOR REHEARING

Present: Seitz, Chief Judge, VAN Dusen, ALDISERT,

Apams, Grpsons, RosENN, HUNTER, WEIS

and GarTH, Circuit Judges

The petition for rehearing filed by

Appellees

in the above entitled case having been submitted to the

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court in banc, the petition

for rehearing is denied.

By the Court,

/s/ Joun J. Grppons

Judge

Dated: October 24, 1973

Ic

APPENDIX C

SUPREME COURT OF THE UNITED STATES

No. A-688

Wan .eicu-Maurice, Lrp., and

Warner Bros., INc.,

Petitioners,

v.

THOMAS TAGGART

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsIpERATION of the application of counsel for

petitioner(s),

It Is Orperep that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same is

hereby, extended to and including February 21, 1974.

/s/ Witttam J. BRENNAN, JR.

Associate Justice of the Supreme

Court of the United States

Dated this 16th day of

January, 1974.