Petition for Writ of Certiorari — Anonsen v. Donahue

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

PILED

7 281585 0R -5 1994

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

NANCY ANONSEN and MICHAEL ANONSEN,

individually and as next friends of WILLIAM BOOHER, Jr.,

Petitioners,

PHIL DONAHUE, MULTIMEDIA ENTERTAINMENT,

INC., MULTIMEDIA, INC., JOSE PRETLOW, KTRK,

INC. D/B/A KTRK-TV, and MIRIAM BOOHER,

Respondents.

On Petition for a Writ of Certiorari to the

Court of Appeals for the First District of Texas

PETITION FOR A WRIT OF CERTIORARI

DAVID H. BERG

Counsel of Record

Berg and Androphy

3704 Travis

Houston, TX 77002

713-524-5622

PHILIP D. ZELIKOW

79 J.F.K. Street

Cambridge, MA 02138

Counsel for Petitioners

Alpha Law Brief Company ¢ Houston, Texas © (713) 981-9000 © 1-800-981-9001

QUESTION PRESENTED

Whether the First Amendment can confer absolute

protection from civil liability as a matter of law for both the

disclosure and the broadcast of painful, intimate information

where the information was not publicly available or a matter

of public record, the victim was not a public figure, the

private discloser had pledged confidentiality, and the

broadcaster acquired the information without the victim’s

consent.

TABLE OF CONTENTS

Page

bby 6 Bg ys err ery Se arr ee i

TR ee CEES oo os he eee eee ii

TABLE AUTIROIIIEe ccc ec teaeeeet? vi

eg kA rere ee ee ee l

FOE x 6 6a es ee 6S . See 2

CONSTITUTIONAL AND STATUTORY

PROV ies EVER C58 ee ee eens 2

et a rr ere naa orn ray, a 2

A. The Tlnvadion OF Privacy... ccc ccc 2

ee, ee rer 5

C. Federal Question Was Basis for

pints Comrt DOGMION 0. ene 6

REASONS FOR GRANTING THE PETITION ..... 6

I. THE FIRST AMENDMENT PRIVILEGE

UPHELD IN TEXAS IS ABSOLUTE, IN

CONFLICT WITH THIS COURT’S HOLD-

ING IN FLORIDA STAR v. B.J.F. ........ 6

A. The Texas Court’s Language Is

NN 646 ae ee 7

l. The court predicated its hold-

ing for both Donahue and

Booher on Booher’s unlimited

First Amendment right to

ee Seiddaette' 4-4 7

2. But Booher’s speech alone,

without Donahue’s publication

of it, had no First Amendment

ott Tk ae 6s 600 7

(a) Booher was not sued just

for revealing her identity ... 7

(b) private speech and the law

fe 8

rights by pledging confi-

re 9

a The Texas court erroneously

conflated Booher’s supposed

rights with Donahue’s First

Amendment claim, creating an

unlimited privilege. ........ 10

B. The Effect of the Texas Court’s Deci-

ee eee 1]

l. The disclosure right was grant-

ed to a victimizer, not the

FRAN ge Se gas 1]

4 The definition of "public con-

cern” is circular and unbound-

Il.

C. This Court Has Expressly Rejected

Such An Unlimited Privilege. ......

NONE OF THE FLORIDA STAR TESTS

WERE PASSED BY BOHER AND

CPG > so 86 We eae aeedense es

A. The Information Was Not Lawfully

RS. 6 ho HERES KO ROS

l. Booher’s disclosure to Donahue

2. Donahue’s acquisition of the

information was "“nonconsen-

EE a on ae kr ergs nate aha) et ah

B. The Information Was Not Publicly

Ne Se ea ee a

G. The Public Interest Against "Timidity

and Self-Censorship" Was Not At

Sey are ne Pee ee ee ee

1. Identification of the victim,

who was not a public figure,

had no “public significance" as

this Court defined the term.

a Despite some overlap, the

contours of constitutional inter-

ests in newsworthiness are not

synonymous with "ratingswort-

hiness" and “infotainment.” .. .

a This common law action pres-

ents a different “state action"

problem than the statutory

prohibitions at issue in Florida

Star and Daily Mail. ....... 23

D. Petitioners Fully Satisfied The Court’s

(and Justice Scalia’s) Tests for Tailor-

ing the Protection of State Interests. .. 23

F The information was not dis

closed by the government. ... 24

y 3 The tort does not create negli-

oo a re 24

3. The tort does not suffer from

the "facial underinclusiveness"

of the Florida statute. ...... 25

Ill. COUNTERVAILING CONSTITUTIONAL

AND PUBLIC INTERESTS WERE OVER-

LOOKED, NOT BALANCED. ......... 25

A. The Texas Court’s Absolute Privilege

Abridges the Constitutional Right to

PS 6 Save eee eee es 26

B. This Absolute Privilege Also Harms

Other Important Public Interests. .... 27

GS: eo a ree oc es a eee 29

bees eg dA ee ree rr Poe yao la

I 8 a kee oe Oe ee Sa

EEG 646+ so 6 xe ode hee oe Ta

TABLE OF AUTHORITIES

Cases Pages

Allen v. State,

— FF 8 Rp ES So 12

Bd. of Directors of Rotary Int’l v. Rotary Club,

A 8 2. Se ee ae rer 26

Burnham v. Superior Court,

IS See og 6 sw ow 6 po 06 es 26

Campbell v. Seabury Press,

oe eT a ee, 10

Capital Cities/ABC, Inc. v. Brady,

740 F.Supp. 1007 (S.D.N.Y. 1990) ............ 25

City of Dallas v. Stanglin,

I Es on 5 5 eee bw de eS lS 26

Cohen v. Cowles Media Co..,

SEU EUS ne ee ee ew neve awn 9, 23

Connick v. Myers,

I Sn oe ad ho el age a lg ata a ere bs 9

Cox Broadcasting v. Cohn,

ig ieee bsg ce We ceuwe 14, 20

Cruzan v. Dir., Missouri Dept. of Health,

I: I I 50 Suir ga cte sa ging Marta ie a wate se 26

Vii

Diaz v. Oakland Tribune, Inc.,

188 Cal. Rptr. 762 (Cal. Ct. App. 1983) ......... 21

Doe v. Borough of Barrington,

Tae CAE, BIOs TOPE) oo eee eee ewes 28

Dresbach v. Doubleday & Co., Inc.,

518 F. Supp. 1285 (D.D.C. 1981) ............. 10

Faretta v. California,

ae alk 6 650 owe eka sR 6

Florida Star v. B.J.F.,

491 U.S. 524 (1989) ...... 7, 11, 14-16, 18-21, 23-25

Gentile v. State Bar of Nevada,

SOG Ta oi vas teehee eed eee 8

Gertz v. Robert Welch, Inc.,

Ce ae EE Sa bce cc we won eenescewn 26

Hicks v. State,

yp 28 ww Be ES yea 12

Huskey v. NBC,

632 F.Supp. 1282 (N.D. Ill. 1986) ............ 21

Industrial Foundation of the South v. Texas

Industrial Accident Board, 540 S.W.2d 668

gl EE Gas ce cA nets oa oe a 17

McCabe v. Village Voice, Inc.,

See Fe, Fae Ge OO TOD os ct cee ey oe 21

Vili

McSurely v. McClellan,

753 F.2d 88 (D.C. Cir.),

cert. denied, 474 U.S. 1005 (1985) ............ 23

Michael H. v. Geruid D.,

a AT eS ou eee oe iis 26

Orr v. Orr,

I 2? a oS oe eee ele we 6

Reuber v. Food Chemical News,

899 F.2d 271 (4th Cir. 1990),

cert. denied, 111 S.Ct. 2814 (1991) ....... 15, 18, 21

Rust v. Sullivan,

ee ee er aa 9

Seattle Times Co. v. Rhinehart,

en I a Ne SS sg bee oo oe 19

Smith v. Daily Mail Publishing Co..,

G43 U.S. FF CRIP 2c ccc 15-17, 19, 20, 23, 24, 26

St. Elizabeth Hospital v. Garrard,

rx eR Fo Fy . y) re 17

Thornburgh v. Am. Coll. of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) ...... 26, 27

Tidelands Automobile Club v. Walters,

699 S.W.2d 939 (Tex. Ct. App., 1985).......... 17

Tyler v. State,

581 S.W.2d 328 (Ark. 1979) (en banc) .......... 12

U.S. Department of Justice v. Reporters Committee,

Po RR ee ae ee 18

Virgil v. Time, Inc.,

§27 F.2d 1122 (9th Cir. 1975),

cert. denied, 425 U.S. 998 (1976) .......... 13, 21

Whalen v. Roe,

Oe ee OE -n. 5-k 6 be Feo te ek ee eee 26

Y.G. v. Jewish Hospital,

795 S.W.2d 488 (Mo. Ct. App. 1990) .......... 21

II. CONSTITUTION AND STATUTES

Ark. Code Ann.

§ 5-54-105 (Michie 1993) .......-.--- seers 12

Ark. Stat.

41-120 (Bobbs Merrill 1964, repealed 1975) ....... 12

Ark. Stat.

§ 41-811 (Bobbs Merrill 1964, repealed 1975) ..... 12

Ark. Stat.

41-812 (Bobbs Merrill 1964, repealed 1975) ....... 12

Ark. Stat.

41-3401 (Bobbs Merrill 1964, repealed 1975) ...... 12

Ark. Stat.

§ 41-3404 (Bobbs Merrill 1964, repealed 1975) ..... 12

Ark. Stat.

41-3406 (Bobbs Merrill 1964, repealed 1975) ...... 1Z

Ark. Stat.

§ 43-1602 (Bobbs Merrill 1964, repealed 1975) ..... 20

Il. MISCELLANEOUS

Dan Rather, Letter to the Editor, N.Y. Times,

§ &. = F - eee eee eee

John Stuart Mill, On Liberty (1849), reprinted

in The Utilitarians 478-79 (1961) ......0..220.0...

Paul Marcus & Tara L. McMahon, Limiting

Disclosure of Rape Victims’ Identities,

64 S.Calif.L.Rev. 1019, 1033 (1991)... .

Restatement (Second) of the Law of Torts,

= Gee Seer ee. se cca se cle eee

Stanley Ingber, Rethinking Intangible Injuries:

A Focus on Remedy, 73 Calif.L.Rev. 772,

839 (1985)

. 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

NANCY ANONSEN and MICHAEL ANONSEN,

individually and as next friends of WILLIAM sOOHER, Jr.,

Petitioners,

PHIL DONAHUE, MULTIMEDIA ENTERTAINMENT,

INC., MULTIMEDIA, INC., JOSE PRETLOW, KTRK,

INC. D/B/A KTRK-TV, and MIRIAM BOOHER,

Respondents.

Petition for a Writ of Certiorari to the

Court of Appeals for the First District of Texas

PETITION FOR A WRIT OF CERTIORARI

Nancy Anonsen, Michael Anonsen, and William

Booher, Jr. respectfully petition for a writ of certiorari to

review the judgment of the Court of Appeals for the First

District of Texas in this case.

OPINION BELOW

The opinion of the court of appeals (App. B, infra, Sa

- 18a) is reported at 857 S.W.2d 700. The trial court order

granting summary judgment (App. A, infra, |a-2a) and the

Supreme Court of Texas denial of the application for a writ

of error (App. C, infra, 19a-20a) and order refusing

rehearing on its earlier denial (App. C, infra, 22a) are

unreported.

JURISDICTION

The court of appeals entered its judgment on June 3,

1993. Petitioners’ application for a writ of error to the

Supreme Court of Texas was denied on November 17, 1993.

Petitioners’ motion for rehearing was denied on January 5,

1994,

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The First Amendment to the Constitution of the

United States provides, in relevant part, that "Congress shall

make no law ... abridging the freedom of speech, or of the

press...

The Fourteenth Amendment to the Constitution

provides, in relevant part, that "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...."

Relevant provisions of former sections of the

Arkansas Code are reproduced in Appendix C, page 23a-24a.

STATEMENT

A. The Invasion of Privacy

The essential facts of the case are undisputed. Also,

since the case arose from appeal of a summary judgment, the

Texas court acknowledged that all of petitioners’ factual

assertions must be accepted as true. 857 S.W.2d at 702.

On January 5, 1989 respondent Miriam Booher

(hereinafter referred to as Booher) appeared on the

"Donahue" television show hosted by respondent Phil

Donahue and produced by respondent Jose Pretlow for their

corporate employers, respondents Multimedia Entertainment,

Inc. and Multimedia, Inc. For convenience, all the

respondents associated with the show will be referred to in

this petition as "Donahue." Respondent KTRK, Inc. d/b/a

KTRK-TV was the local station which carried the show in

the Houston-Galveston area.

The show’s topic for the day was "Forbidden

Pregnancies." Booher did not appear to tell about her own

forbidden pregnancy. Instead she recounted what happened

to her daughter. Her daughter, petitioner Nancy Anonsen,

was raped by her stepfather, Booher’s husband, seventeen

years earlier, when the girl was only eleven years old.

Nancy had borne a child from this incest. Booher had

helped conceal the crime.

This incestuous rape occurred in 1972. Booher,

though she soon learned the truth of what happened to her

daughter, never reported the matter to authorities. She

remained married to her husband and raised her daughter’s

child as if he was an adopted half-brother. The daughter and

the child left the household after the daughter came of age.

The daughter still cares for her son and represents his

interests in this proceeding.

In 1988 Booher’s husband left her and filed for

divorce. Angry, Booher decided to use the crime her

husband had committed against her daughter as a way of

getting back at her husband. Greed was also a factor. As

the Texas court observed, "Booher was motivated by revenge

and the desire to sell a book about her life." 857 S.W.2d at

702. Once again, her daughter was the pawn. So Booher

wrote a letter about the rape of her daughter and sent it to

four television shows: Oprah; Morton Downey, Jr.;

Geraldo; and Donahue. Only Donahue’s producer replied.

Donahue admitted that at the time of his show on

"Forbidden Pregnancies" he was sensationalizing his

programs because of the competition for ratings. (Tr. 120,

226, 230-33). Though Booher bragged she could get others

in her family to appear, this was false. It was clear well

before air time that in fact only Booher would appear. No

one associated with Donahue thought this odd or attempted

to contact anyone except Booher.

Booher appeared on Donahue without disguise and

used her own full name as she told what had happened to her

daughter. From time to time the caption "Daughter Had

Husband’s Baby" appeared on the screen as Booher spoke.

By disclosing her own identity, Booher effectively and

immediately disclosed the names of her daughter and her

daughter’s child from the rape. 857 S.W.2d at 702.

The consequences for Anonsen and her son were

instantaneous and severe. Once more the victim of parental

abuse, the daughter first learned of the broadcast from her

husband. She was "embarrassed, humiliated, paranoid and

couldn’t function in any way" after the show aired. (Tr.

1273). Her marriage broke apart and, despite marital

counseling, she and her husband divorced six months after

the broadcast. Her son, then 16 years old, began

experiencing harassment from his high school classmates,

who mocked him as a "bastard." He had to transfer to

another school to escape the harassment. Both mother and

son began receiving medical treatment for the trauma. (Tr.

1270, 1352).

The broadcast was so traumatic because Booher was

disclosing a closely held family secret. Petitioners testified

that the rape had been kept secret from everyone except a

few friends and family members. (Tr. 217, 218, 1262).

The matter was never a part of any public record. The

biological child of the rape, William Booher, Jr., had only

been told the truth in 1987, when he was fourteen years old.

Miriam Booher, by disclosing the story on national

television, violated her own repeated and express pledges of

confidentiality to petitioners. When Booher told Nancy she

was talking to Donahue, her daughter pleaded with her not

to do it. "Too many people will get hurt." Booher agreed

not to appear. Booher then assured her daughter she had

called Donahue’s producer to tell him she, Booher, would

not go on the show. (Tr. 1261). Her assurance was untrue.

Donahue, in broadcasting Booher’s disclosure,

violated his own customary practices. Donahue, designated

by respondents as an expert on his industry, said he often

concealed identities to protect people. Identities of callers

were concealed every day. Some guests are disguised, and

can still move audiences to tears. (Tr. 102-04, 133).

Donahue said he had done many shows about rape. But he

said he had never revealed the identity of a rape victim

without first obtaining the victim’s permission. (Tr. 57,

258). Such a failure to obtain the victim’s permission would,

he conceded, amount to an invasion of privacy. (Tr. 259).

Respondents concede that neither Donahue nor his

staff obtained or attempted to obtain petitioners’ consent for

the acquisition of the information from Booher or their

broadcast of her disclosures. They never tried to contact

petitioners at all. Nor was any attempt made to conceal

Booher’s identity in order to protect petitioners.

Petitioners sued Booher, Donahue, Donahue’s

producer, and Donahue’s corporate employers for invasion

of privacy, under the common law tort for public disclosure

of private facts. This tort has long been accepted in Texas

and many other states. Petitioners also sued for the

intentional infliction of emotional distress.

B. Proceedings Below

After suit was brought and depositions taken,

respondents moved for summary judgment under the First

Amendment and on state law grounds. The 56th district

court for Galveston County, Texas, granted the motion.

Petitioners appealed to the court of appeals. The court of

appeals affirmed the judgment, relying solely on its analysis

of the federal claim under the First Amendment, as applied

to the states under the Fourteenth. Petitioners applied for a

writ of error from the Supreme Court of Texas. The

application was denied without any opinion on the merits of

the case. Motion for rehearing to the Supreme Court was

denied. Since it was the highest state court which actually

ruled on the merits, this petition for certiorari seeks relief

from the ruling of the court of appeals. Faretta v.

California, 422 U.S. 806, 812 (1975).

c. Federal Question Was Basis for State Court

Decision

The court of appeals held that while the motions had

addressed a variety of state law issues, the appeal would be

disposed of based on the court’s analysis of respondents’

claim of First Amendment protection. 857 S.W.2d at 703.

No other issues were considered. No state constitutional

provisions were invoked. The Texas Supreme Court gave no

reason for refusing discretionary review. Since the state

court has held that a federal question is properly before it

and has proceeded to consider and dispose of that issue, this

Court’s concern about the proper raising of the federal

question in the state courts has disappeared. Orr v. Orr, 440

U.S. 268, 274-75 (1979).

REASONS FOR GRANTING THE PETITION

I. THE FIRST AMENDMENT PRIVILEGE

UPHELD IN TEXAS IS ABSOLUTE, IN

CONFLICT WITH THIS COURT’S

HOLDING IN FLORIDA STAR vy. B.J.F.

The Texas court has eliminated the tort of public

disclosure of private facts by erroneously granting the

discloser an unlimited First Amendment right and then

equating the broadcaster’s rights with those of the discloser.

This Court’s narrower test for balancing First Amendment

interests, laid out in Florida Star v. B.J.F., 491 U.S. 524

(1989), was not applied by the Texas court.

A. The Texas Court’s Language Is Unlimited.

l. The court predicated its holding for both

Donahue and Booher on Booher’s unlimited

First Amendment right to disclose.

The Texas court’s ruling hinges on the belief that the

decisive issue is Booher’s right to disclose. The question, it

said, is "whether a person’s right to make public the most

private details of their own life is limited when the

information also reveals painful intimacies of other persons.

We find that it is not." The discloser’s right is therefore

unlimited, so long as the disclosure has to do with the details

of the discloser’s life.

2. But Booher’s speech alone, without Donahue’s

publication of it, had no First Amendment

protection

(a) Booher was not sued just for

revealing her identity

Since the public is interested in rape, incest, and as

Donahue’s show put it, "forbidden pregnancies," the Texas

court thought the only other First Amendment question was

whether Booher could reveal her own identity. 857 S.W.2d

at 704. Yet if Booher had gone on the Donahue show just

to say her name, she would not have been allowed on the air

and there would have been no lawsuit. To be liable, Booher

had to both identify herself, thereby identifying her daughter

and her daughter’s son, and she had to disclose that her

daughter had been the victim of her husband’s abuse, abuse

to which she was a criminal accessory. Had she only done

one of these two things, without the other, she would not

have invaded petitioners’ privacy and inflicted emotional

distress. So while Booher may have a right to say her name,

the question remains whether she had a constitutional right to

link her identity to the account of how her daughter was

raped.

(b) private speech and the law of torts

The Texas court relied completely on Booher’s right

to tell about events in which she was involved. This is, in

essence, a contention that the First Amendment immunizes

speech from civil liability if the speaker is recounting a

personal experience. This is a startling premise, since

lawsuits throughout the country have long held individuals

liable if their private speech breaches a legal duty to another.

This certainly includes speech about their own experiences,

as in most confidentiality cases. In Gentile v. State Bar of

Nevada, 111 S.Ct. 2720 (1991) this Court held that an

attorney could be disciplined for extrajudicial statements to

the press, above and beyond other obligations of

confidentiality. 111 S.Ct. at 2733-36. Businessmen are

barred from disclosing trade secrets they learned in their

employment. Parties to lawsuits can be barred from

disclosing the terms of a settlement. Hospitals can be held

liable for improperly revealing the names of individuals who

have tested HIV-positive.

So the First Amendment has never provided unlimited

protection if the speech violated a common law legal duty.

The key issue in this case is whether Booher owed such a

duty to petitioners. But that is an issue for state law and for

a jury; its resolution is not dictated as a matter of law by the

First Amendment.

The distinction between protected speech and private

speech is not new to this Court. Though the holding of the

Texas court in this case is a novel one, the Court has dealt

with claims that public employees have been dismissed for

their speech. In such cases the Court has distinguished

between public and private speech, pointing out that the First

Amendment’s goal is "the full protection of speech upon

issues of public concern,” such as the conduct of government

agencies or public persons. Connick v. Myers, 461 U.S.

138, 154 (1983).

In sum, Booher and Donahue actually have quite

different positions under the First Amendment. Booher, as

a private person handing out newsletters about her daughter,

would have had no constitutional protection. This is doubly

true, because she expressly waived any right to disclose.

pledging confidentiality

Yet even if Booher had some First Amendment right

to tell about what she and her husband did to their daughter,

she certainly waived that right by pledging not to disclose the

information. First Amendment rights can be waived. Rust

v. Sullivan, 111 S.Ct. 1759, 1775 (1991). They can,

specifically, be waived by a pledge of confidentiality, as this

Court held in Cohen v. Cowles Media Co., 111 S.Ct. 2513,

2519 (1991). A news source sued a newspaper for breaking

the promise to conceal his identity. Despite the public

interest served by revealing the source’s identity, this Court

concluded that if there has been an agreement of

confidentiality, "any restrictions which may be placed on the

publication of truthful information are self-imposed." The

press had no constitutional right to disregard promises

enforceable under state law. Id.

Petitioner testified that just such pledges existed in

this case. Her testimony must be accepted as true for the

purposes of a summary judgment. Booher promised to keep

the secret, and specifically agreed that she would not appear

on the Donahue show. She had no First Amendment right to

break that promise.’

xB The Texas court erroneously conflated

Booher’s supposed rights with Donahue’s First

Amendment claim, creating an unlimited

privilege.

Petitioners have shown that Booher and Donahue had

quite different protections under the First Amendment. If

Booher had publicized her allegations without any help from

Donahue, she would have had no constitutional protection at

all. On the other hand, Donahue does have a First

Amendment right to be considered. But the Texas court

never analyzed Donahue’s rights. It wrongly assumed that

Booher’s alleged right to disclose settled the case. Therefore

the court did not decide, for example, whether the broadcast

was newsworthy because, it said, "we do not believe that the

issue of newsworthiness ... is relevant to the ultimate inquiry

before us: whether Booher had the right to reveal her own

identity." 857 S.W.2d at 705.

Donahue is liable for quite different reasons. Even if

Booher had a right to disclose, Donahue would not

necessarily have the right to broadcast her disclosure to

millions of people. Donahue’s rights are subject to the tests

Incidentally, the existence of the confidentiality agreement and

related waiver is alone sufficient to distinguish the two cases relied upon

by the Texas court, Campbell v. Seabury Press, 614 F.2d 395 (Sth Cir.

1980); Dresbach v. Doubleday & Co., Inc., 518 F. Supp. 1285 (D.D.C.

1981). Nothing in either of these opinions suggests that the discloser had

expressly agreed to keep the matters secret and then violated the pledge.

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

below.

Petitioners only pause here to call the Court's

attention to the extraordinary result of fusing Booher’s

supposed rights with those of Donahue. A new and

extremely broad First Amendment privilege has been created.

Since Booher’s identity was coupled with an account of her

"personal" experience, and since all this was thereby

privileged, the court creates an unlimited First Amendment

right to disclose anything one has personally learned or

experienced. Then it considers any question of press rights

disposed of by the discloser’s right. Thus the court

apparently holds that any disclosure of any firsthand

knowledge about anyone can be published with full First

Amendment immiunity for both discloser and publisher.

B. The Effect of the Texas Court’s Decision Is

Unlimited.

This reading of the nominal scope of the Texas

court’s decision is reinforced by consideration of its practical

effect. The right to disclose is being given to one of the

victimizers, not the victim. The only other test, “public

concern,” is defined in a way that will be met in every

conceivable case.

1. The disclosure right was granted to a

victimizer, not the victim.

If criminals have a First Amendment right to disclose

how they harmed their victims, then the right of disclosure

has no discernible boundary. Though the court called

Booher one of the "victims of the family tragedy of incest,"

857 S.W.2d at 705, the law is less generous. The acts done

to the daughter by her stepfather were more than a tragedy;

they were felonies, chargeable as rape, carnal abuse, or

incest, under the Arkansas law defining those offense in

1972. See Ark. Stat. § 41-811 & 41-812 (incest), 41-3401

(rape), 41-3406 (carnal abuse) (Bobbs Merrill 1964,

repealed 1975); Allen v. State, 488 S.W.2d 712 (Ark. 1973);

Hicks v. State, 243 S.W.2d 372 (Ark. 1951).

Booher was an accessory after the fact to these

crimes. Despite her legal duty to protect her daughter, she

joined in concealing the offense from the authorities. Both

in 1972 and now, accessories after the fact were and are

punished in Arkansas. Given the seriousness of the offenses

being concealed, Booher could conceivably have been

charged with a felony. See Ark. Stat. § 41-3404 (accessories

"before or after the fact to the crime of rape"), 41-120

(accessory after the fact) (Bobbs Merrill 1964, repealed

1975); see also current Ark. Code Ann. § 5-54-105

(hindering apprehension or prosecution) (Michie 1993); Tyler

v. State, 581 S.W.2d 328, 332 (Ark. 1979) (en banc)

(discussing both previous and current law).

There was a real victim of these crimes, and it was

Nancy Anonsen. As Booher sought revenge against her ex-

husband and a book contract, Nancy became the victim yet

again, but her agony this time was shared by her son.

Giving Booher a First Amendment privilege to reinjure her

victim places no sensible limit on the privilege, and it is

unconscionable.

“8 The definition of "public concern" is circular

and unbounded.

The Texas court held that Booher’s disclosure was

constitutionally protected because the "show’s general

subjects, incest, rape” were newsworthy. 857 S.W.2d at

704. It then held that the newsworthiness privilege might not

cover the specific information identifying petitioners, but this

was irrelevant because Booher had an unlimited constitutional

right to disclose information about her experiences.

Petitioners have already addressed the issue of Booher’s

supposed rights. To show why the Texas court’s privilege

is in practice absolute, we simply add here that the first part

of its test, the finding of interest in the general subject will

be met in every single case.

First, the Texas court comments that "the privilege to

discuss matters of public interest extends to information

concerning interesting phases of human activity." 857

S.W.2d at 703. Second, the opinion leaves no doubt that if

the activity was not interesting, it would not be in the media.

So the definition is circular. We can see the topic was

interesting, because it was in the press or on TV. Donahue,

like much of the media, believes it only broadcasts about

topics that are or should be interesting. Rape is interesting.

So are pregnancies. So is AIDS, and it would be interesting

to hear which people are actually HIV-positive. There is

definite interest in the secret details of the out-of-court

settlement of a big lawsuit, or what some criminal defendant

might have confided to his attorney.

This syllogism becomes a serious problem for this

Court because the Texas court’s opinion uses it as the First

Amendment umbrella for Booher’s unlimited disclosure right.

Major premise: discussion of all topics of public interest is

constitutionally protected. Minor premise: Booher disclosed

on a topic of public interest. Conclusion: Booher’s speech

is constitutionally protected. Since we see that the major

premise, the umbrella, covers practically any imaginable

topic, the constitutional privilege extends to practically any

disclosure.

We are thus presented with the very danger Judge

Merrill warned of in Virgil v. Time, Inc., 527 F.2d 1122 (9th

Cir. 1975), cert. denied, 425 U.S. 998 (1976):

To hold that privilege extends to all true statements

would seem to deny the existence of ‘private’ facts,

for if facts be facts -- that is, if they be true -- they

would not (at least to the press) be private, and the

press would be free to publicize them to the extent it

sees fit. The extent to which areas of privacy

continue to exist, then, would appear to be based not

on rights bestowed by law but on the taste and

discretion of the press. We cannot accept this result.

527 F.2d at 1128.

The Texas decision creates, both on its face and in

practical effect, an absolute First Amendment privilege that

would practically eliminate not only the tort of public

disclosure of private facts, but also cut a swath through many

other common law torts, such as breach of confidentiality,

and limit a broad array of oft-used government and judicial

powers to regulate disclosure of private information.

_ ol This Court Has Expressly Rejected Such An

Unlimited Privilege.

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

Sheriff's Department posted the name of a rape victim who

had just reported the crime in its press room. The

newspaper ran the story in its police blotter section with the

victim’s name. Florida had a statute which made it unlawful

to "print, publish, or broadcast" the name of the victim of a

sexual offense. The victim sued the Sheriff's Department

and the newspaper. The Department settled; the newspaper

was found liable. The Supreme Court ultimately reversed

the finding, holding that the newspaper’s action was

protected by the First Amendment.

This Court began by admitting that its prior decisions

had not “exhaustively considered" the conflict between

reporting of truthful information and protections of privacy,

a “somewhat uncharted" area of the law. 491 U.S. at 530,

530 n.5. Appellant Florida Star urged the court to base its

holding on Cox Broadcasting v. Cohn, 420 U.S. 469 (1975)

and hold that the press may never be punished for publishing

the truth. Appellee B.J.F. asked the court for an equally

categorical ruling, that publishing the name of a rape victim

could never enjoy constitutional protection. This Court

declined both invitations.

Instead this Court chose to follow Smith v. Daily Mail

Publishing Co., 443 U.S. 97 (1979) and adopt a narrower

holding which would acknowledge the ongoing need to

balance First Amendment interests with those of privacy.

"We continue to believe that the sensitivity and significance

of the clashes presented in clashes between First Amendment

rights and privacy rights counsel relying on limited principles

that sweep no more broadly than the appropriate context of

the instant case." 491 U.S. at 533.

This Court took care not to “rule out the possibility

that, in a proper case, imposing civil sanctions for

publication of the name of a rape victim might be so

overwhelmingly necessary to advance these [privacy]

interests as to satisfy the Daily Mail standard." 491 U.S. at

537. This Court warned other courts that, "Our holding

today is limited. We do not hold that truthful publication is

automatically constitutionally protected, or that there is no

zone of personal privacy within which the State may protect

the individual ....". 491 U.S. at 541. Other courts heard the

warning. “The Court [in Florida Star] expressly recognized

that individuals maintain a privacy interest even in true facts

that must be weighed against the societal interest in free

expression." Reuber v. Food Chemical News, 899 F.2d 271,

285 (4th Cir. 1990), cert. denied, 111 S.Ct. 2814 (1991).

But the Texas court, by giving the discloser an

unlimited constitutional right, by allowing victimizers as well

as victims to claim this right, and by treating the discloser’s

right as dispositive for the broadcaster as identical, has

fashioned just the sweeping holding this Court warned

against. It is difficult to imagine how, in practice, any

significant zone of personal privacy can remain protected

against such a privilege.

The Texas court did not apply the tests offered by this

Court in Florida Star. Indeed, the Texas court did not even

cite this Court’s decision.

The dissenters in Florida Star pronounced that,

"Today, we hit the bottom of the slippery slope." 491 U.S.

at 547 (White, J., dissenting). Unfortunately, they were

wrong. New depths have been dredged. This case is an

illustration of how the media organization can fail the tests

elaborated in Florida Star.

Il. NONE OF THE FLORIDA STAR TESTS WERE

PASSED BY BOOHER AND DONAHUE.

Florida Star v. B.J.F. bases its holding on the Daily

Mail principle that "if a newspaper lawfully obtains truthful

information about a matter of public significance then state

officials may not constitutionally punish publication of the

information, absent a need to further a state interest of the

highest order.” 443 U.S. at 103, quoted in Florida Star, 491

U.S. at 533. For the press conduct, this Court itemized

three considerations in applying this principle, along with a

separate examination of the state interest.

Petitioners will examine each of these three

considerations, and the way in which the state interest was

tailored to the problem. This Court has implied that all three

of these tests must be passed by the publisher. Otherwise the

Daily Mail principle would need to be amended. In this

case, none of them were passed by Donahue or Booher.

A. The Information Was Not Lawfully Acquired.

"First," the principle only protects the publication of

information which has been "lawfully obtained." 491 U.S.

at 534. This includes the question of consent, so critical to

this case. "To the extent sensitive information rests in

private hands, the government may under some

circumstances forbid its nonconsensual acquisition, thereby

bringing outside of the Daily Maii principle the publication

of any information so acquired." /d.

1. Booher’s disclosure to Donahue was unlawful.

Booher’s disclosure to Donahue unlawfully breached

a legal duty owed to petitioners, both in general and because

of her express pledge of confidentiality. The common law

tort of invasion of privacy through disclosure of private facts

had long been recognized in Texas. Industrial Foundation of

the South v. Texas Industrial Accident Board, 540 S.W.2d

668, 682-84 (Tex. 1976). Texas also recognizes the tort of

intentional infliction of emotional distress through speech.

Tidelands Automobile Club v. Walters, 699 S.W.2d 939,

942-44 (Tex. Ct. App., 1985). Sv. Elizabeth Hospital v.

Garrard, 730 S.W.2d 649, 652-54 (Tex. 1987). Publicity is

an element of the invasion of privacy tort, but the unlawful

conduct was complete by Booher’s actions alone, before

Donahue broadcast her disclosure, both because the publicity

was foreseeable and because (unlike defamation) publicity

can be accomplished without publication. /ndustrial

Foundation, 540 S.W.2d at 683.

rs Donahue’s acquisition of the information was

"nonconsensual."

As noted above, this Court expressly flagged the

danger to a publisher of "nonconsensual acquisition" of

information in private hands. Donahue did not obtain, or

attempt to obtain, petitioners consent for the broadcast of

Booher’s disclosure. This was a violation of his own

practice for invariably obtaining the rape victim’s consent

before disclosing the victim’s identity.

Donahue may now argue, though, that he had

Booher’s consent. It was immaterial. Booher’s privacy was

not in need of protection.

In Florida Star the victim voluntarily disclosed the

offense to the government. The government then disclosed

the information to the press. But here, Booher was not

telling the story of a crime committed against her. She was

telling the story of a crime committed, many years earlier,

against her daughter, a crime which she helped conceal.

When this Court referred to “nonconsensual

acquisition," it can only have been writing of the consent of

those with the expectation of privacy, the persons whose

privacy interests the law seeks to protect. In this case, they

are petitioners, not Booher. "In an organized society, there

are few facts that are not at one time or another divulged to

another ... information may be classified as ’private’ if it is

"intended for or restricted to the use of a particular person or

group or class of persons; not freely available to the

public." U.S. Department of Justice v. Reporters

Committee, 489 U.S. 749, 763-64 (1989)(quoting Webster’s

Third New International Dictionary). It would be odd indeed

to find, in this case, that the victim’s expectation of privacy

can be waived by one of the victimizers.

B. The Information Was Not Publicly Available.

A second consideration in Florida Star was that

"punishing the press for its dissemination of information

which is already publicly available is relatively unlikely to

advance the interests in the service of which the State seeks

to act." 491 U.S. at 535. In Florida Star the government

had "made certain information publicly available." /d. That

was not the case here (or in Reuber v. Food Chemical News,

899 F.2d at 285).

The term "publicly available" is relatively narrow. It

does not, for instance, include depositions in a judicial

proceeding. Seattle Times Co. v. Rhinehart, 467 U.S. 20,

32-33 (1984). Yet the facts here do not require the drawing

of fine lines. No one ever reported the rape of 11 year-old

Nancy Anonsen to public authorities, in 1972 or later. It

was never a matter of public record.

Cc. The Public Interest Against "Timidity and Self-

Censorship" Was Not At Risk.

"A third and final consideration is the ‘timidity and

self-censorship’ which may result from allowing the media to

be punished for publishing certain truthful information.”

Florida Star, 491 U.S. at 535. The application of this test

in Florida Star can readily be distinguished from the facts of

this case. Since the disclosure came from the government,

this Court wanted to let the media rely on the government

and not have to sift through public reports to “prune out

material arguably unlawful for publication." 491 U.S. at

536. That situation is obviously not presented here. But

there are three additional reasons why the public interest

which properly concerned the Court was not at risk in this

case.

l. Identification of the victim, who was not a

public figure, had no “public significance."

The crime cannot be said to have retained "public

significance" by 1988, "in the sense in which the Daily Mail

“synthesis of prior cases used that term." Florida Star, 491

U.S. at 536. This Court defined the term precisely: “That

is, the article generally, as opposed to the specific identity

contained within it, involved a matter of paramount public

import: the commission, and investigation of a violent crime

which had been reported to authorities." /d.

In this case, no crime had been reported to

authorities. None was being investigated. No investigation

was possible; the statute of limitations had expired in 1975.

For offenses committed in Arkansas before 1976, when a

new code was adopted, the statute of limitations, for all

felonies except murder was three years. Ark. Stat. § 43-

1602 (Bobbs Merrill 1964, repealed 1975).

2. Despite some overlap, the contours of

constitutional interests in newsworthiness are

not synonymous with "ratingsworthiness" and

"infotainment."

The Florida Star holding, by following Daily Mail

rather than Cox Broadcasting, no longer treats the First

Amendment question in private facts cases simply as a

definition of the "newsworthiness" privilege.

"Newsworthiness” remains an important factor, however, in

evaluating the Court’s required inquiry into the risk of

"timidity and self-censorship" presented by the punishment

of media behavior.

The Donahue show is not a news program produced

by a news organization. Donahue and his corporate

employers are in the business of providing a product which

mixes information with entertainment. This does not mean

Donahue has no First Amendment rights. He does. But his

producers and editors are not applying the criteria of

“newsworthiness” to their product. They are applying other

criteria, which may overlap with "newsworthiness" but are

not identical with it. Therefore the First Amendment

interests at issue in this case must be evaluated with special

care.

The traditional rule has been that newsworthiness ends

and liability begins when the "publicity ceases to be the

giving of information to which the public is entitled, and

becomes a morbid and sensational prying into private lives

for its own sake...." Restatement (Second) of the Law of

Torts, § 652D, comment h (1977). It is hard to imagine any

case offering a better example of "morbid and sensational

prying into private lives for its own sake” than this one.

Booher detailed the long-past incestuous rape of her

daughter; a caption ran underneath highlighting “Daughter

Had Husband’s Baby,” all on a program with the topic of

"Forbidden Pregnancies." For even milder examples held

liable or sent to the jury, see, e.g., Virgil v. Time Inc. 527

F.2d at 1128 (profile of body surfer); Huskey v. NBC, 632

F.Supp. 1282, 1289 (N.D. Ill. 1986)(film showing man’s

tattoo); McCabe v. Village Voice, Inc., 550 F.Supp. 525,

529-30 (E.D. Pa. 1982)(nude photo without consent); Diaz

v. Oakland Tribune, Inc. , 188 Cal. Rptr. 762, 771-73 (Cal.

Ct. App. 1983)(local college president’s sex-change

operation).

Newsworthiness is clearly not synonymous with

omnipresent public interest. In Reuber v. Food Chemical

News, the court found some legitimate public interest in the

subject of a letter circulated about Reuber, on the quality of

his cancer research. But the privacy interest was strong

enough to require that the issue of liability be given to the

jury. 899 F.2d at 284-85. Another case decided after this

Court’s holding in Florida Star was Y.G. v. Jewish Hospital,

795 S.W.2d 488 (Mo. Ct. App. 1990). The hospital was

sued for disclosing information about plaintiffs’ in vitro

fertilization. Despite acknowledging undeniable public

interest in the subject, the court considered sexual,

procreative, and medical treatment matters essentially private

and considered then not to be newsworthy if (a) they were

not the subject of a legal action or activity of police or other

public officials; or (b) did not occur in public view. The

disclosure was held not newsworthy as a matter of law. 795

S.W.2d at 499-501.

The danger of "timidity and self-censorship" is

especially reduced in this case because Donahue could have

avoided liability and still let Booher talk about her daughter.

He had the option of concealing Booher’s identity. He

admitted in his deposition that he had often used this practice

in the past, and said that such stories could still move him

and his audience to tears.

Donahue also cannot claim that by disclosing a

victim’s identity against her will, he was doing a public

service. Aside from studies showing that most public

disclosures of rape victim identity reinforce rather than dispel

sexual assault stereotypes, the fundamental question is "why

must the victim, who has already suffered from the ordeal of

rape, be forced to bear the responsibility of educating

society...?" Paul Marcus & Tara L. McMahon, Limiting

Disclosure of Rape Victims’ Identities, 64 S.Calif.L. Rev.

1019, 1033 (1991). Eighty-four percent of the American

public agreed in a survey that the identity of rape victims

should be kept out of news stories unless the victim agrees

to disclosure. /d. at 1034.

If Donahue is held liable for cavalierly damaging this

victim’s life and the life of her child, when identifying her

was little more than "morbid and sensitive prying,” there is

no risk of inducing "timidity." The opposite danger is far

greater. If the Constitution immunizes Donahue from

accountability for such conduct, the standard for proper press

behavior is redefined and lowered.

Traditional news organizations, competing against

"infotainment," are already fighting the temptation to lower

their ethical standards for finding and presenting news. As

the managing editor and co-anchor of CBS Evening News

and anchor of its "48 Hours" program recently wrote

(discussing checkbook journalism):

Part of the allure of lowered standards is the

success of the syndicated magazine shows. They’re

sensationalized, dramatized, Hollywoodized. They

also cost little and perform well in the ratings. These

shows don’t apply traditional hard-news standards ...

I doubt most even think about hard-news standards.

Too many of us in hard news, with the wolf at the

door and the bean counter’s breath down our necks,

are looking for that extra tenth of a ratings point,

envying the success of the syndicated magazines. ...

If we keep blurring the distinctions and standards

between news and entertainment, we're all going to

have to pay.

Dan Rather, Letter to the Editor, N.Y. Times, March 8,

1994, at A20.

a This common law action presents a different

"state action” problem than the statutory

prohibitions at issue in Florida Star and Daily

Mail.

The risk of inducing "timidity and self-censorship” is

further minimized in this case because the Court is not being

asked to uphold a categorical statutory prohibition. Instead

the Court is asked only to sustain the application of common

law legal duties where the individuals involved define the

circumstances of their liability. In Cohen v. Cowles Media

Corp. this Court distinguished Florida Star and Daily Mail

by observing that in those cases "the State itself defined the

content of publications that will trigger liability. ... Here, by

contrast, Minnesota law simply requires those making

promises to keep them.” 111 S.Ct. at 2519; see also

McSurely v. McClellan, 753 F.2d 88, 112 (D.C. Cir.), cert.

denied, 474 U.S. 1005 (1985)(upholding common law

invasion of privacy action against congressional

investigators).

D. Petitioners Fully Satisfied The Court’s (and Justice

Scalia’s) Tests for Tailoring the Protection of State

Interests.

Even if the press conduct had met the three tests

which flow from the Daily Mail principle, this Court also

acknowledged there could be a need to balance constitutional

interests in free expression with "a need to further a state

interest of the highest order." Daily Mail, 443 U.S. at 103,

quoted in Florida Star, 491 U.S. at 533. Itis “undeniable”

that the interests underlying protections for victims of sexual

offenses "are highly significant interests." Florida Star, 491

U.S. at 537. But the statute at issue in Florida Star was not

properly tailored to protect these interests while respecting

First Amendment concerns, for three reasons, none of which

are present here.

l. The information was not disclosed by the

government.

This Court, in Florida Star, was strongly influenced

by the fact that the government had disclosed the information

and now sought to punish its publication. The government,

the Court noted, could have simply restricted the

dissemination of the information. 491 U.S. at 538. In this

case neither the government nor petitioners were responsible

for the disclosure.

, 2 The tort does not create negligence per se.

The Florida law was faulted for "the broad sweep of

the negligence per se standard applied under the civil cause

of action implied from" the statute. This Court expressly

held that the common law approach was preferable, because

it evaluated each case on its individual merits. "Unlike

claims based on the common law tort of invasion of privacy,

see Restatement (Second) of Torts § 652D (1977), civil

actions based on [the Florida law] require no case-by-case

findings that the disclosure of a fact about a person’s private

life was one that a reasonable person would find highly

offensive." 491 U.S. at 539.

3. The tort does not suffer from the "facial

underinclusiveness" of the Florida statute.

The final objection to the way in which Florida was

protecting its state interests was the "facial

underinclusiveness" of the statute. It punished the disclosure

of identity of an "instrument of mass communication” but did

not punish disclosures by other means. "An individual who

maliciously spreads word of the identity of a rape victim is

thus not covered" although the consequences could be

“equally devastating." 491 U.S. at 540.

This “underinclusiveness" was the sole ground for

Justice Scalia’s concurrence in the decision of the Court in

Florida Star. He concluded that “the law has every

appearance of a prohibition that society is prepared to impose

upon the press but not upon itself." 491 U.S. at 541-42

(Scalia, J., concurring).

This case obviously avoids the "underinclusiveness"

problem by relying on the common law cause of action. The

tort applies to individual disclosures as well as mass media

outlets. Suit in this case was brought against both the private

discloser, Booher, and those who broadcasted her disclosure.

See also Capital Cities/ABC, Inc. v. Brady, 740 F.Supp.

1007, 1013 (S.D.N.Y. 1990).

Ill. COUNTERVAILING CONSTITUTIONAL AND

PUBLIC INTERESTS WERE OVERLOOKED,

NOT BALANCED.

In fashioning a First Amendment privilege in this

area, as the Texas court has done, the interests on each side

need to be carefully balanced. "We have eschewed absolutes

in favor of a more delicate calculus that carefully weighs the

conflicting interests to determine which demands the greater

protection under the particular circumstances presented.”

Daily Mail, 443 U.S. at 106 (Rehnquist, C.J., concurring);

see Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-46

(1974). But, as argued above, the Texas court's holding is

categorical and unqualified.

A. The Texas Court’s Absolute Privilege Abridges the

Ccoustitutional Right to Privacy.

This Court has recognized a constitutional interest as

well as a public policy interest in protecting the right to

privacy. See Thornburgh v. Am. Coll. of Obstetricians and

Gynecologists, 476 U.S. 747, 766-67 (1986); Whalen v. Roe,

429 U.S. 589, 599-600, 605-06 (1977). The privacy right

probably flows from the protection of liberty in the Due

Process Clause, reinforced by the common law tradition

recognizing such a right as a dimension of substantive due

process. Burnham vy. Superior Court, 110 S.Ct. 2105, 2115

(1990)(plurality); Cruzan v. Dir., Missouri Dept. of Health,

110 S.Ct. 2841, 2852-53 (1990); Michael H. v. Gerald D.,

491 U.S. 110, 118-30 (1989). The First Amendment’s right

of association also protects "intimate human relations” from

public inquiry. City of Dallas v. Stanglin, 490 U.S. 19, 23-

24 (1989); Bd. of Directors of Rotary Int'l v. Rotary Club,

481 U.S. 537, 545 (1987).

The Texas court's privilege would — grant

constitutional immunity for publicizing any disclosure of

private facts by a person who can claim to be describing

their own experiences or personal knowledge. As mentioned

earlier, the Texas court’s definition of "public concern"

makes it practically unlimited. There is no requirement that

constitutionally protected privacy interests be weighed in the

balance. Therefore the Texas court uses state authority to

shield the abridgment of other constitutional rights. It would

be curious if the Constitution could be stretched to hold, on

the one hand, that it is unconstitutional to publicize a

—

person's private, traumatic, reproductive choice, Thornburgh

v. Am. Coll., while holding, on the other hand, that it is

unconstitutional to punish those who publicize a person's

private, traumatic, reproductive experience.

B. This Absolute Privilege Also Harms Other

Important Public Interests.

In addition to the constitutional interests at stake,

conferring such unlimited immunity to disclosers and

publishers would injure important public interests. There

are, of course, the interests every individual has in privacy.

The protection of some private space in the life of each

citizen, especially those who have never sought the limelight

of public life, is both valuable to all and a constant point of

distinction between democracies and tyrannies. “Social

tyranny” can indeed be "more formidable than many kinds of

political oppression, since ... it leaves fewer means of

escape, penetrating much more deeply into the details of life.

and enslaving the soul itself." John Stuart Mill, On Liberty

(1849), reprinted in The Utilitarians 478-79 (1961).

With the disclosure and publication of private facts,

“the wrong is found in the fact that ’a private life has been

transformed into a public spectacle.’ .. invoking “the

essential core of the right to privacy.” Stanley Ingber,

Rethinking Intangible Injuries: A Focus on Remedy, 73

Calif.L.Rev. 772, 839 (1985). The usual compensatory

remedies are inadequate and "unlike virtually all other areas

of communication, more speech or information can never

rectify the wrong.” /d., 840. Privacy actions must therefore

deter disclosers and the media to have their effect. and the

courts must then balance the individual and collective

interests at stake. “The danger of chilling the media may be

no greater when privacy rather than reputation is at stake.

but the societal price of insufficient deterrence may weigh

more heavily in the privacy case." /d., 843 (emphasis in

Original).

Other public interests are also at stake. Under the

Texas court’s holding, a lab technician might publicize his

encounter with an AIDS case even if he knew that revealing

his own identity would necessarily identify the victim of the

disease. Compare, e.g., Doe v. Borough of Barrington, 729

F.Supp. 376, 382-85 (D.N.J. 1990)(disclosure of HIV status

to neighbors justifies invasion of privacy action). Or, for

another example: a professor appears on television to brag

about the details of how he humiliated and sexually harassed

his female student and, by revealing his identity, necessarily

and foreseeably reveals hers. He and the broadcaster would

be immune from suit.

Or the defendant in an ongoing legal action could

appear on television and tell his story, even if the trial judge

had imposed a gag rule on the parties. The legal duty

embodied in the trial judge’s order would have to yield to the

constitutional right of disclosure established by the Texas

court. Or, for another example, a plaintiff whose lawsuit

was settled could go on Donahue and reveal just what he was

paid. The general topic might be interesting; the plaintiff

would only identify himself; and the plaintiff would be

constitutionally protected from suit for violation of the

nondisclosure agreement.

Many more illustrations can be offered for the broad

reach of the Texas court’s constitutional privilege, from trade

secrets to family planning and abortion. In each case the

discloser would ordinarily be bound by some legal duty not

to reveal the truthful but private information. In each case

the legal duty would give way before the constitutionally

privileged disclosure. Beyond protection of the victims of

sexual and parental abuse, there are many compelling public

interests protected by the law’s numerous restraints on the

public disclosure of private facts. The decision of the Texas

court did not balance any of these interests against those it

sought to protect. This Court should.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DAVID H. BERG

Counsel of Record

BERG & ANDROPHY

3704 Travis

Houston, TX 77002

713-524-5622

PHILIP D. ZELIKOW

79 J.F.K. Street

Cambridge, MA 02138

Counsel for Petitioners

GALVESTON COUNTY TEXAS

NO. 89-CV-0297

NANCY ANONSEN and

MICHAEL ANONSEN,

Individually and

as Next Friend of § COURT OF

WILLIAM BOOHER, JR. §&

Plaintiffs, §

Vv. §

§ GALVESTON COUNTY,

PHIL DONAHUE, MULT- § TEXAS

IMEDIA ENTERTAIN- §

MENT, INC., JOSE §

PRETLOW, KTRK-TY, §

INC. d/b/a KTRK TV, § 56th JUDICIAL

and MIRIAM BOOHER, § DISTRICT

Defendants. §

JUDGMENT

BE IT REMEMBERED that on the 7th day of

January, 1991 came on to be heard DEFENDANTS PHIL

DONAHUE, MULTIMEDIA ENTERTAINMENT, INC.,

JOSE PRETLOW, KTRK-TV, INC. D/B/A/ KTRK TV,

AND MIRIAM BOOHER’S Motion for Summary Judgment

and that after considering the Motion for Summary Judgment

APPENDIX A

C.J, BENINATI

CLERK DISTRICT COURT

FILED

MAR 4 1991

BY /s/ illegible

Deputy

IN THE DISTRICT

and the attachments thereto, the briefs filed in support of the

motion for summary judgment, the response filed to the

motion for summary judgment and attachments thereto, the

briefs filed by the Plaintiffs and arguments of counsel, the

Court is of the opinion that Defendants’ Motion for Summary

Judgment should be granted.

It is therefore ORDERED, ADJUDGED = and

DECREED that summary judgment be entered for and on

behalf of Defendants and that Plaintiffs Nancy Anonsen,

Michael Anonsen and William Booher, Jr. recover nothing

by this action and that each party shall pay for costs incurred

by each such party. All relief not specifically granted herein

is denied.

ENTERED this 4th day of March , 1991.

/s/ illegible

JUDGE PRESIDING

APPENDIX B

COURT OF APPEALS

FIRST DISTRICT OF TEXAS

COPY OF JUDGMENT

NANCY ANONSEN AND Appeal from the 56th

MICHAEL ANONSEN, District Court,

INDIVIDUALLY AND AS Galveston County,

NEXT FRIENDS OF Texas. (Tr.Ct.No.

WILLIAM BOOHER, JR., 89CV0297). Opinion

APPELLANTS delivered by Chief

Justice Oliver-Parrott,

Justices Cohen and

O'Connor also sitting.

NO. 01-91-00377-CV Vv.

PHIL DONAHUE, MULTIMEDIA

ENTERTAINMENT, INC.,

MULTIMEDIA, INC., JOSE PRETLO,

KTRK, INC. ,d/b/a/ KTRK-TV, AND

MIRIAM BOOHER, APPELLEES

The cause heard today by the Court is an

appeal from the judgment rendered and entered by the court

below on January 7, 1991. After hearing the cause on the

record of the court below and inspecting the same, it is the

opinion of this Court that there was no error in the judgment.

It is therefore CONSIDERED, ADJUDGED, AND

ORDERED that the judgment of the court below be in all

things affirmed.

It is further ORDERED that the appellants,

NANCY ANONSEN AND MICHAEL ANONSEN,

INDIVIDUALLY AND AS NEXT FRIENDS OF

WILLIAM BOOHER, JR., jointly and severally, pay the

costs incurred by reason of this appeal.

It is further ORDERED that this decision be

certified below for observance.

Judgment rendered by panel consisting of

Chief Justice Oliver-Parrott, Justices Cohen and O’Connor.

Judgment entered JUN 03 1993 , 1993.

So AD NO ade

In The

Court of Appeals

For The

First District of Texas

No. 01-91-00377-CV

NANCY ANONSEN AND MICHAEL ANONSEN,

INDIVIDUALLY AND AS NEXT FRIENDS OF

WILLIAM BOOHER, JR., Appellants

PHIL DONAHUE, MULTIMEDIA ENTERTAINMENT,

INC., MULTIMEDIA, INC., JOSE PRETLO, KTRK,

INC, d/b/a KTRK-TV, AND MIRIAM BOOHER,

Appellees

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 89CV0297

OPINION

The question before the Court is whether a person’s

right to make public the most private details of their own life

is limited when the information also reveals painful

intimacies of other persons. We find that it is not.

On January 5, 1989, appellee, Miriam (Mickey)

Booher appeared as a guest on the Phi] Donahue Show, the

subject matter of which was pregnancies resulting from incest

or rape. Booher told a nationwide audience the story of her

husband's rape of her daughter from a previous marriage

when the child was 11 years old. Booher also revealed that

she had never reported the rape to authorities; that she had

remained married to her husband for some 16 to 17 years

after the incident; and that her 16-year old adopted son, who

had been raised as her daughter's adopted half-brother, was

actually her daughter's biological child. Although the names

of Booher’s husband, daughter, and grandson were not

disclosed on the air, Booher used her own full name. From

time to time the caption "Daughter Had Husband’s Baby”

appeared on the screen as Booher spoke.

As a result of the broadcast, appellants brought this

suit against Booher and the other appellees, alleging invasion

of privacy through the public disclosure of private facts and

intentional and negligent infliction of emotional distress.

Their complaint is that by disclosing her own identity,

Booher effectively disclosed their identities as well, thus

exposing the incestuous rape of Anonsen and_ the

circumstances of her child’s birth to a nationwide audience.

The trial court granted summary judgment in favor of all

defendants. Finding that Booher’s right to publish her

personal account of her family’s tragedy is protected speech

under the first amendment of the United States Constitution,

we affirm.

Booher told the Donahue show audience that she had

met her husband in Germany and moved to Arkansas with

him and her six-year-old daughter, Nancy, whom he adopted.

Sometime in 1972, Booher’s husband raped Nancy, who was

then 11 years old. Nancy became pregnant as a result and

gave birth to a boy. Booher claimed that she did not know

at the time that her husband was the child’s father. Her

husband insisted that they should give their daughter love and

understanding and that they should adopt the child and raise

it as their own. Booher assented. It was not until five years

later that Booher learned the real story of her daughter’s

pregnancy when, in anger, her husband revealed the truth.

Booher claimed that upon learning the truth, she

ordered her husband to leave but reconciled with him shortly

thereafter because of economic hardship. Booher told the

viewers that she could neither read or write English, could

obtain only menial jobs, and she feared for her welfare and

the welfare of her children. In addition, at that time,

Booher’s daughter did not know that Booher had learned the

truth about the rape, and her grandson/adopted son "loved

his daddy." Maintaining physical separation in the same

house, Booher and her husband continued to live together

until her adopted son was 15 years old. At that time, the

boy Isarned the truth about his parents, and, according to

Booher, there was no longer a need for pretense. She and

her husband, who was at all relevant times a police officer,

separated formally and were divorced sometime thereafter.

Appellants acknowledge that the story told by Booher

is true. In addition, they assert the following facts that led

up to Booher’s appearance on the Donahue show. After

Booher’s husband left her and filed for divorce in 1988, she

wrote a letter about the rape and sent it to four nationally

broadcast talk shows. Booher was motivated by revenge and

the desire to sell a book about her life. Only Donahue’s

producer responded to the letter. No member of Donahue’s

staff ever contacted Anonsen or her son to verify Booher’s

story or to determine whether they consented to the

broadcast.

In fact, Anonsen testified that she told her mother not

to go on the Donahue show because “too many people will

get hurt." Booher told Anonsen that she had canceled her

plans to appear. Anonsen learned of her mother’s

appearance from her husband. Plaintiff, Michael Anonsen

saw the show when it was broadcast on KTRK-TV.

William, Jr., who was 16 years old at the time, testified that

he watched the show with his father. After the show, his

high school classmates harassed him, calling him a "bastard."

He had to transfer to another school to escape the

harassment.

Until the Donahue broadcast, the story of Anonsen’s

rape and the truth about William, Jr.’s real parents had never

been reported to the authorities, or made a part of any public

record. Appellants maintain that the story had been revealed

only to a few close friends and relatives.

For purposes of this opinion we will accept all

appellant’s factual assertions as true and look at the summary

judgment proof in a light most favorable to them. Nixon v.

Mr. Property Management Co., 690 S.W.2d 546, 548-49

(Tex. 1985).

Without specifically so holding, the United States

Supreme Court has indicated that the tort of invasion of

privacy may encompass a cause of action for public

disclosure of private facts, even if the facts are true. See

Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 487-91

(1975); Time, Inc. v. Hill, 385 U.S. 374, 383 n.7(1967); see

also, Virgil v. Time, Inc., 527 F.2d 1122, 1127 (9th Cir.

1975). The purpose of the tort is to protect the individual

against unwarranted publication of private facts. However,

the protection of the individual must be balanced with the

privilege of the press to give publicity to matters of public

interest that arise out of the desire and the right of the public

to know what is going on in the world and the freedom of

the press and other information agencies to report it. See

Times, Inc. , 385 U.S. at 388; see also generally, Prosser and

Keaton on Torts, (Sth ed. 1984); RESTATEMENT (Second)

ren: War eae ements pane cr eee

of Torts § 652 D & cmt. § 652 D (1989). While there

generally can be no liability for publication of truthful

information contained in official records open to public

inspection, Floyd v. Park Cities People, Inc., 685 S.W.2d

96, 97-98 (Tex. App.--Dallas 1985, no writ), a different

standard may apply in cases where the facts revealed are not

a matter of any public record. See Cox Broadcasting Corp.,

420 U.S. at 491.

To prevail in a common-law tort cause of action for

invasion of privacy, a plaintiff must establish the following

elements:

(1) publicity was given to matters concerning

the plaintiff's private life;

(2) the matters made public would be highly

offensive to a reasonable person of ordinary

sensibilities;

(3) the matters publicized were not of

legitimate public concern.

Indus. Found. v. Texas Indus. Acc. Bd., 540 S.W.2d

668, 682 (Tex. 1976); see also Billings v. Atkinson, 489

S.W.2d 858, 860 (Tex. 1973).

The defendants, Booher, along with Multimedia

Entertainment, Inc. and Multimedia, Inc., who produce the

Donahue show; the show’s host, Phil Donahue; Jose Pretlo,

the producer of the show involving Booher; and KTRK,

INC. d/b/a KTRK TV, the television channel that broadcast

the show in the Houston-Galveston area (collectively, the

“media defendants"), moved for summary judgment of the

following grounds:

10a

(1) The published facts concerning incest,

sexual abuse, and acceptance § and

understanding of the victims of these crimes,

were of legitimate concern to the public.

(2) No private facts were published to the

public at large.

(3) Booher’s personal revelations were

protected under the first and fourteenth

Amendments of the United States

Constitution.

In addition to the grounds asserted by the other

defendants, KTRK moved for summary judgment on the

grounds that (1) it had no duty to prescreen the show because

it was justified in relying on Metromedia’s warranty that the

show did not violate such rights, and (2) the nationwide

broadcast of the show, three days before it was aired in the

Houston-Galveston area, precluded an action against KTRK

for public disclosure of private facts.

To obtain summary judgment, a defendant has the

burden of establishing by competent summary judgment

proof that, as a matter of law, there is no genuine issue of

material fact as to one or more essential elements of the

plaintiff's cause of action. Gibbs v. General Motors Corp.,

450 S.W.2d 827 (828 (Tex. 1970). While the defendants’

motion for summary judgment and the plaintiffs’ response

addressed all three elements of the privacy tort, as well as

the plaintiffs’ other causes of action, we find the analysis of

the third element to be dispositive of the appeal.

It is the third element of the tort, i.e., the publicizing

of matters not of legitimate public concern, that gives rise to

a first amendment privilege, sometimes referred to as the

“newsworthiness defense,” to publish or broadcast news or

other matters of public interest. Ross v. Midwest

Communications, Inc., 870 F.2d 271, 272 (Sth Cir. 1989);

Dresbach v. Doubleday & Co., Inc., 518 F.Supp. 1285,

1287 (D.D.C. 1981). The privilege to discuss matters of

public interest extends to information concerning interesting

phases of human activity and must embrace all issues about

which information is needed or appropriate so that

individuals may cope with the exigencies of their period.

Times, Inc., 385 U.S. at 388; Campbell v. Seabury Press,

614 F.2d 395, 397 (Sth Cir. 1980). The privilege is broad

and extends beyond subjects of political or public affairs to

all matters of the kind customarily regarded as "news" and

all matters giving information to the public for purposes of

education, amusement or enlightenment, where the public

may reasonably be expected to have a legitimate interest in

what is published. Virgil, 527 F.2d at 1129.

The risk of . . . exposure [of the individual to

others] is an essential incident of life in a

society which places a primary value on

freedom of speech and of press. Freedom 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.

Time, Inc., 385 U.S. at 388.

Appellants assert that whether a subject is of

legitimate public concern is a question of fact for a jury.

Specifically, they contend that a jury should decide whether

their identities were newsworthy so as to warrant revelation.

We cannot agree, however, under the particular facts and

circumstances of this case.

aaeeanieeenenieens

12a

Whether the issue is a question of law or fact, there

are two inquiries involved in a determination of whether

Booher’s revelations during her appearance on the Donahue

show broadcast were protected by the first amendment; (1)

whether the show’s general subjects, incest, rape, and the

children born of those crimes, were within the scope of the

first amendment privilege; and if they were, (2) whether

Mickey Booher’s revelation of her own identity was also

protected by the first amendment. See Ross v. Midwest

Communications, Inc., 870 F.2d 271, 274 (Sth Cir. 1989);

Times Mirror Co. v. Superior Court, 244 Ca. Rptr. 556,

561-62 (Cal.Ct.App. 1988), cert. denied, 109 S.Ct. 862

(1989) (while the general subject matter of a publication may

be newsworthy, it does not necessarily follow that all

information given in the account is newsworthy.

In each case relied on by appellants, the court has no

problem determining, as a matter of law, whether the general

subject matter context of the published facts is newsworthy.

In Time, Inc., the Supreme Court had “no doubt that the

subject of the Life article, the opening of a new play linked

to an actual incident, is a matter of public interest” within the

scope of protection afforded by constitutional guarantees of

speech and press. Time, Inc. 385 U.S. at 388. The court in

Hall v. Post, 355 §.E.2d 819, 826 (N.C. Ct. App. 1987),

held that the topic of adoption and its related issues are of

"legitimate interest, in a general way, to the public.”

Likewise, in Virgil, the court conceded that "the privilege to

publicize newsworthy matters would, as a matter of law,

extend to the general subject of surfing." Virgil, 527 F.2d

at 1131.

Like those courts before us, we have no doubt that,

as a matter of law, the crimes of incest and rape, the

victimization of innocent people whose lives are touched by

those crimes, and the importance of fostering understanding

13a

and healing of those victims, are matters of legitimate public

concern. It is the second part of the inquiry that sets the

instant case apart from most of the cases relied on by the

parties, both in the trial court below and in their exhaustive

briefs on appeal.

While frequently deciding the newsworthiness of

general topics as a matter of law, courts have acknowledged

the possible existence of fact questions about the

newsworthiness of the plaintiff's identity, or of private facts

about the plaintiff, allegedly unrelated to those general

topics. ' It is those highly fact-specific issues that some

courts have found might raise an issue for determination by

a jury. See Times Mirror Co., 244 Cal. Rptr. at 564

(whether the publication of a murder witness’ name was

newsworthy was a question of fact); see also Virgil, 527

F.2d at 1131 (whether private facts unrelated to the sport

were of legitimate public interest in relation to an article on

surfing was a question of fact). As the Virgil court

succinctly put it, "the fact that [individuals] engage in an

activity in which the public can be said to have a general

interest does not render every aspect of their lives subject to

public disclosure." Virgil, 527 F.2d at 1131.

In those cases that address the newsworthiness of the

plaintiff's identity, the identity of the plaintiff had been

revealed by a third party who had no connection with the

events other than to report them. See, e.g., Cox

1. In Hall, the court found that the newsworthiness of the private

facts published about the plaintiff's adoption, including the identities of

the parties, was an issue on which reasonable minds could differ and

should be decided by a jury. In addition, the court found a fact issue

existed about whether some or all of the facts of the adoption were

publicly known or were, in fact, private. Hall, 355 S.E.2d at 828.

l4a

Broadcasting Co., 420 U.S. at 473-74 (broadcasting

company identified deceased rape victim during coverage of

trial of alleged rapist. Time, Inc., 385 U.S. at 374

(magazine reported that new play portrayed experience of

plaintiff and his family who had been held hostage in their

home by escaped convicts); Hall, 355 S.E.2d at 820

(newspaper revealed identity of adopted child and her

adoptive and birth mothers in a story about the details of that

particular adoption); Ross, 870 F.2d at 271 (TV documentary

revealed rape victim's first name and showed photo of her

residence in a program supporting the pardon of an allegedly

wrongly convicted rapist); Harris by Harris v. Easton Pub.

Co., 483 A.2d 1377 (Pa. Super. Ct. 1984) (newspaper

published unrelated private facts about the family of a

welfare applicant); DeGregorio v. CBS, Inc., 473 N.Y.S.2d

922 (N.Y. 1984) (in a feature story about romance,

broadcaster showed film of two hard hat workers holding

hands on public street); Sipple v. Chronicle Publishing Co.,

201 Cal. Rptr. 665 (Cal. Ct. App. 1984) (newspaper

revealed that who saved President Ford from assassination

was gay); Hebert v. Roshto, 439 So.2d 428 (La. 1983) (

newspaper published a 25-year-old article containing details

of criminal convictions for which plaintiffs had been

pardoned); Diaz v. Oakland Tribune, Inc., 188 Cal. Rptr.,

762 (Cal. Ct. App. 1983) (newspaper revealed that class

president was a transsexual in a follow-up article to an

unrelated story about class finances); Gilbert v. Medical

Economics Co., 665 F.2d 305 (10th Cir. 1981) (publisher

revealed physician’s name, photo, and psychiatric history in

article about failure of medical profession to police its

members).

We do not believe that the issue of newsworthiness of

the parties’ identities, whether a question of law or a

question of fact, is relevant to the ultimate inquiry before us:

whether Booher had the right to reveal her own identity.

lSa

In the present case, Booher, like her daughter and

grandson, is herself one of the victims of the family tragedy

of incest. Her reactions to that tragedy, the impact on her

life of her daughter's rape, the birth of the child of that rape,

whom she adopted and raised as her own, and her eventual

discovery of the truth about her husband -- all comprise her

story as well as that of the other family members.

Therefore, we are unable to agree with appellants’ contention

that a jury should be allowed to determine whether Booher’s

voluntary, undisguised appearance on the Donahue show was

no more than "morbid and sensational prying.”

We find two cases especially persuasive in our

analysis of Booher’s right to reveal her identity in telling the

story of her experience, thus making the identities of

appellants ascertainable. In Campbell v. Seabury Press, 614

F.2d 395 (Sth Cir. 1980), the plaintiff sued for invasion of

privacy, complaining that private facts about her marriage

were disclosed in an autobiography written by her husband’s

brother. As in the situation before us, the matters were not

a part of any public record, nor, apparently, had they been

widely publicized and thus rendered not private. The author

revealed the facts in discussing the effect on his life of the

marriage of his older brother, with whom he shared a very

close relationship.

In Campbell, the trial court granted summary

judgment for the author. The appellate court affirmed.

holding that there is a first amendment Privilege to publish

truthful information of legitimate public concern, and the

privilege encompasses dissemination of information relating

to even individuals who have not sought or who have

attempted to avoid publicity. Campbell, 614 F.2d at 397.

The court observed that the privacy of such individuals is

protected, however, by requiring that logical nexus exist

between the identity of the individual and the matter of

16a

legitimate public interest.? Jd. The court then determined

that the private facts of his brother’s marriage, as they

affected the author, had the requisite logical nexus to fall

within the ambit of the constitutional protection. /d.

Likewise, in Dresbach, the plaintiff sued a book

publisher and others for invasion of his privacy through their

publication of a book about his brother’s murder of their

parents some 19 years earlier. Although the court

acknowledged the absolute privilege accorded matters in the

public record, it went on to decide the case on the grounds,

specifically stating, "we must decide whether true matters in

the book were matters of public interest at the time they were

published and whether the inclusion of plaintiff in connection

with those matters was legitimate, or whether the

countervailing interest in plaintiff's privacy concerning those

matters many years after the events renders the publication

actionable." Dresbach, 518 F.Supp. at 1289-1290.

The court first determined that the subject matter of

the book, the brother’s past crime, his motivation, his prison

experiences, his rehabilitation, and the support and lack of

support extended by his friends and family, was a matter of

legitimate public concern as a matter of law. Dresbach, 518

F.Supp. at 1290. Next, the court closely analyzed the

disclosure of the plaintiff's identity under the logical nexus

requirement articulated in Campbell. Based upon its

analysis, the court concluded that the book could not have

been written “without including private facts about the

plaintiff's homelife which obviously was intimately bound up

with his brother’s homelife." /d. Unfortunately, appellants

are in the same unenviable position in relation to Booher’s

life.

2. It should be noted that the plaintiff in Campbell did not contend

that the autobiography was without legitimate public interest.

17a

Acknowledging the dangers of creating restrictions on

the individual’s right to self-expression, the court stated:

[W]e tread on dangerous ground deciding

exactly what matters are sufficiently relevant

to a subject of legitimate public interest to be

privileged. First Amendment values could

obviously be threatened by the uncertainty

such decisions could create for writers and

publishers. Only in cases of flagrant breach

of privacy which has not been waived or

obvious exploitation of public curiosity where

no legitimate public interest exists should a

court substitute its judgment for that of the

publisher . . . . Clearly here, where the

important public issues of crime, the criminal

justice system, and_ rehabilitation are

concerned, the defendants have shown an

adequate nexus between matters of legitimate

public interest and the disclosures about the

plaintiff to merit constitutional protection.

Dresbach, 518 F.Supp. at 1290-1291 (citations omitted).

In the context of their personal stories, which were

undoubtedly theirs to tell, both Campbell’s and Dresbach’s

revelations of private facts about others involved in their

lives were protected by the first amendment. We find that

Booher’s rights are similarly protected. As appellees

suggest, to hold otherwise would be to imply that one’s

autobiography must be written anonymously.

Like the court in Dresbach, we are not without

compassion for appellants, who certainly have been

victimized by the tragic events revealed on the Donahue

program. We are further mindful that the protection of

Booher’s right to reveal her story and her identity imposes

additional emotional suffering upon appellants. Sensitive

18a

information which appellants have to some extent attempted

to keep secret, has been given unwelcome publicity, causing

them pain. Yet, we conclude that to allow a cause of action

based upon Booher’s truthful and undisguised account of her

own and her family’s experience is inconsistent with the first

amendment. Freedom of speech would be severely

compromised if discussions of matters of public interest were

circumscribed in the manner advocated by appellants.

The summary judgment must, therefore, be affirmed.

/s/ Alice Oliver-Parrott

Alice Oliver-Parrott

Chief Justice

Justices Cohen and O’Connor also sitting.

Publish. Tex. R. App. P. 90.

Judgment rendered and opinion delivered JUN 03 1993

True Copy Attest:

/s/ Kathryn Cox

Kathryn Cox

Clerk of Court

19a

APPENDIX C

(stamp illegible)

No. 01-91-0377-CV

APPLICATION OF WRIT OF ERROR TO

THE SUPREME COURT OF TEXAS

NANCY ANONSEN and MICHAEL ANONSEN

Individually and as Next Friends of WILLIAM

BOOHER, JR., a Minor

Petitioners

WRIT DENIED

PHIL DONAHUE, MULTIMEDIA ENTERTAINMENT,

INC., MULTIMEDIA, INC., JOSE PRETLO, KTRK, INC.

d/b/a KTRK TV, and MIRIAM BOOHER

Respondents

LIST OF NAMES OF PARTIES

The following individuals and entities have an interest

in the subject matter of this case:

Ms. Nancy Anonsen Mr. Michael Anonsen

1003 19th Street 1003 19th Street

Galveston , Texas Galveston, Texas

20a

Mr. William Booher, Jr.

1003 19th Street

Galveston, Texas

10017

Multimedia,

Entertainment, Inc.

75 Rockefeller Plaza

Suite 827

New York, New York 10019

Mr. Jose Pretlo

Multimedia Entertainment

30 Rockefeller Plaza

Suite 827

New York, New York 10017

Ms. Miriam Booher

410 Prickett Road

Bryant, Arkansas 72022

Mr. Phil Donahue

30 Rockefeller Plaza

New York, New York

Multimedia, Inc.

75 Rockefeller Plaza

Suite 827

New York, New York

10019

KTRK, Inc. d/b/a

KTRK TV

3310 Bissonnet

Houston, Texas 77005

2la

THE SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

January 5, 1994

Mr. David Berg

Berg & Androphy

3704 Travis Street

Houston, TX 77002

Mr. Kenneth J. Bower

McLeod Alexander

Powel & Apffel

802 Rosenberg

P. O. Box 629

Galveston, TX 77553-0629

Mr. R. James George, Jr.

George, Donaldson & Ford

1000 Norwood Tower

114 W. 7th Street

Austin, TX 78701

Ms. Julie A. Ford

George, Donaldson

& Ford, L.L.P.

114 W. 7th St.

1000 Norwood Tower

Austin, TX 78701

RE: Case No. D-4138

Mr. James B. Galbraith

McLeod, Alexander,

Powel & Apffel, P.C.

P. O. Box 629

Galveston, TX

77553-0629

Mr. Otto D. Hewitt, III

The Davenport Law Firm

1480 East Highway 6

Alvin, TX 77511

Ms. Amy C. Wright

George, Donaldson &

Ford, L.L.P.

1000 Norwood Tower

114 W. 7th Street

Austin, TX 78701

22a

Style) NANCY ANONSEN and MICHAEL ANONSEN,

INDIVIDUALLY AND AS NEXT FRIENDS OF

WILLIAM BOOHER, JR., A MINOR v. PHIL

DONAHUE, MULTIMEDIA ENTERTAINMENT,

INC., MULTIMEDIA, INC., JOSE PRETLO,

KTRK, INC. D/B/A KTRK

Dear Counsel:

Motion for rehearing of application for writ of error

in the above referenced case was this day overruled.

Sincerely,

John T. Adams, Clerk

by /s/ illegible

Courtland Crocker

Deputy

23a

41-120. Accessory after the fact.—An accessory

after the fact is a person who, after a full knowledge that a

crime has been committed, conceals it from the magistrate,

or harbors and protects the person charged with or found

guilty of the crime. [Rev. Stat., ch. 44, div. 3, art 8, § 3;

C. & M. Dig., § 2310; Pope’s Dig., § 2936.]

41-811. Incest defined.—Persons marrying, who

are within the degrees of consanguinity within which

marriages are declared by law to be incestuous, or void

absolutely, or who shall commit adultery or fornication with

each other, shall be deemed guilty of incest. [Rev. Stat., ch.

44, div. 4, art 7, § 5; C. & M. Dig., § 2628; Pope’s Dig.,

§ 3318.)

41-812 Penalty for incest.— Whoever shall be

convicted of incest shall be imprisoned in the penitentiary for

a period not less than three [3] nor more than ten [10] years.

[Act Dec. 17, 1838, § 4 (2nd sent.), p. 121; C. & M. Dig.,

§ 2629; Pope’s Dig., § 3319.]

41-3404. Accessory to rape. —Accessories before or after

the fact to the crime of rape shall be punished by

imprisonment in the penitentiary for a period of not less than

five [5] years nor more than twenty-one [21] years. [Act

Dec. 17, 1838, § 4 (Ist sent.,clause 2), § 10 (3rd & 4th

sent.), p. 121; C & M Dig., § 2312; Pope’s Dig., § 2938.]

41-3406. Carnal abuse—Penalty.—Every person convicted

of carnally knowing, or abusing unlawfully, any female

person under the age of sixteen [16] years, shall be

imprisoned in the penitentiary for a period of not less than

one [1] year nor more than twenty-one [21] years. [Act Feb.

13, 1899, No. 12, § 1, p. 10; C & M Dig., § 2720; Pope’s

Dig., § 3406.)

24a

43-1602. Felonies other than capital.—No person shall be

prosecuted, tried, and punished for any other felony unless

an indictment be found within three [3] years after the

commission of the offense; Provided, that in cases of

embezzlement of funds by an administrator, guardian, .or

curator the limitation shall not begin to run until an

accounting has been had and such administrator, guardian, or

curator has been ordered by a court of competent jurisdiction

to pay over the funds and in other cases of embezzlement of

trust funds the limitation shall not begin to run until the

defalcation is discovered. [Rev. Stat., ch. 45, § 251; Acts

1923, No. 202, § 1, p. 176; C. & M. Dig., § 2886; Pope’s

Dig., § 3702.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.