# Opposition Brief — Barger v. Courier Journal & Louisville Times Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 1006

## Text

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oid Supreme Court, U.S.
Z/ FItrbdD
No. 91-1431 APR 2. 3992
OFFICE OF THE Cicnn
In The “ei

Supreme Court of the United States

—

October Term, 1991

ROMA JEAN BARGER, RICHARD O. BARGER, JR., KEVIN
S. BARGER and JOHN B. BARGER,

Petitioners,

vs.

COURIER-JOURNAL AND LOUISVILLE TIMES COMPANY
and GANNETT CO., INC.,

Respondents

On Petition for Writ of Certiorari
to the Kentucky Court of Appeals

RESPONDENTS’ BRIEF IN OPPOSITION

>

JON L. FLEISCHAKER
Counsel of Record

WILLIAM H. HOLLANDER
WYATT, TARRANT & COMBS
Attorneys for Respondents
Citizens Plaza

Louisville, Kentucky 40202

(S02) 589-5235

1832
[etz © Nu (908) 257-6850°(800) 3 APPEAL*NY (212) 840-4640eMA (617) 542-1114
Ap te ime. DC (202) 783-7288+PA (215) 925-6500*USA (800) 5 APPEAL

TABLE OF CONTENTS

Page

RE OE WEN Ta oo kuc 6 oc hada han ve ccs saxcveres 2

Reasons for Denying the Writ ..............0ccccccees 5
I. The Court of Appeals judgment rested on state law
grounds and this Court lacks jurisdiction to review it.

UALS RAK dine wee ue eRe RE RMANNS Ae WEN abet 5

II. The Bargers’ claim for intentional or reckless
infliction of emotional distress was properly
PL Cav pERESKRALARMAKNEUR SR ebad neceeeehs 7

III. The Bargers’ claim for invasion of privacy was
ee IS Gk cK ods acu ee chen ack ees« 11

A. Because Only A Living Individual Whose
Privacy Is Invaded May Maintain An Action For
Invasion Of Privacy, The Bargers’ Claim Fails.

POeEN Cee CERNE SEEM UCR ee bat Uk Lule 11
B. Because The Matter Publicized Was Of
Legitimate Concern To The Public, The Bargers’
RC owe uh ud ass xb o-k-nace bb eek sae us 13
I 2 go oes trre e enar e e 22

TABLE OF CITATIONS

Cases Cited:

Bell v. Courier-Journal and Louisville Times Company, 402
Roe fF rere rrr re rrr 17

il

Contents
Page

Bremmer v. Journal-Tribune Publishing Company, 247 lowa
yee 2k we of fe eer ere 18

Buzinski v. DoAll Company, 31 Ill. App. 2d 191, 175 N.E.
20 STT CR is vn osha 654505 eee 15

Cape Publications v. Bridges, 423 So. 2d 426 (Fla. Dist. Ct.
App. 1982), petition denied, 431 So. 2d 988 (Fla.), cert.

Gented,, 466 U3: GS Claes 0 see cuca etaneekscnesss 19
Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla.

rr ¢0b0h bea Sau ba eT ci 15
Craft v. Rice, 671 S.W. 2d 247 (Ky. 1984) ............. 7

Florida Publishing Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976),
curt. Gomied, G51 Ua. Fee CEP iis oc ws te sccesnsacss 21

Herd v. Preaitn, 324 U.5. 107 CIGD vnc awn c ces ctanas 5

Humana of Kentucky, Inc. v. Seitz, 796 S.W. 2d 1 (Ky. 1990)
PPT ry a Pete ei ee a ec Fs

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S. Ct.
PPO CRI sin thc vs ws oe ee ee ee eee 9

Jones v. Herald Post Co., 230 Ky. 227, 18 S.W. 2d 972 (1929)

Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E. 2d
BOG (INSU 8 ioe vaxetensceeee eee 10, 12, 13

Li aneimnaetimeiaasiiiiiiilliiaiiii

ill
Contents

Page

Kentucky Auto Mechanics Service Co. v. Kentucky Auto
Parts Co., 267 Ky. 531, 102 S.W. 2d 1022 (1937)

(to Rp ae Eee 3
Le Mistral Inc. v. Columbia Broadcasting System, 61 App.

Div. 2d 491, 402 N.Y.S. 2d 815 (lst Dept. 1978)

i er ts ha aes ce knee ae be 20
Marinaro v. Deskins, 344 S.W. 2d 817 (Ky. 1961)....... 20
McCall v. Courier-Journal & Louisville Times Co., 623 S.W.

2d 882 (Ky. 1981), cert. denied, 456 U.S. 975 (1982)

eee eee Ch ku se gh de be.ts0-6 0 04-00 60.00 1M 11, 16
McKee v. Gratz, 260 U.S. 127 (1922).................. 20
Michigan v. Long, 463 U.S. 1032 (1983) ............... 5
Payner v. Lear Siegler, Inc., 542 F.2d 955 (6th Cir. 1976),

cert. denied, 430 U.S. 969 (1977).................. 3
Pearce v. Courier-Journal and Louisville Times Company,

683 S.W. 2d 633 (Ky. App. 1985) ................ 16, 17
Waters v. Fleetwood, 212 Ga. 161, 91 S.E. 2d 344 (1956)

PS space Se OSG ey ae ea a 17
United States Constitution Cited:
De Ly nak kew mae 4,9

Rule Cited:

he ee 9

iv

Contents
Page

Other Authorities Cited:

Restatement (Second) of Torts § 46 (1965) .............. 7,8
SE eee grep ar re ene Ge a ey pe ee 7,8
SANE Uke Ca¥enessaVONe hee beenen ta cechens 8

Restatement (Second) of Torts § 652D ............... 14, 19
cs cu 5644 Gee ok ee a Oe 14
Pn Von cecee cy ees Shave ehh Cheese ive ueeaes 14

Restatement (Second) of Torts § 652I (1976)........ 6; 11, 12
PPP CPT TTP ET Cee Te PTT TT Tee eer 12

No. 91-1431

In The

Supreme Court of the United States

October Term, 1991

ROMA JEAN BARGER, RICHARD O. BARGER, JR., KEVIN
S. BARGER and JOHN B. BARGER,

Petitioners,
VS.

COURIER-JOURNAL AND LOUISVILLE TIMES COMPANY
and GANNETT CO., INC.,

Respondents.

On Petition for Writ of Certiorari
to the Kentucky Court of Appeals

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents, Courier-Journal and Louisville Times Company
and Gannett Co., Inc., respectfully pray that a writ of certiorari
not be issued to review the judgment and opinion of the Kentucky
Court of Appeals entered on April 12, 1991.

_

STATEMENT OF THE CASE

Richard Owen Barger was shot and killed at the Standard
Gravure plant in Louisville, Kentucky on September 14, 1989.
The same mentally disturbed gunman who shot Mr. Barger killed
eight other individuals and himself, and injured twelve others,
in the Standard Gravure rampage. The shootings, and particularly
the assailant’s use of an assault rifle, the importation and sale
of which has been extremely controversial, created enormous
public interest in Louisville and throughout the world.

The day after the shootings, Courier-Journal and Louisville
Times Company (‘‘Courier-Journal’’) published the photograph
at issue in this action in its daily newspaper, The Courier Journal,
as part of its extensive account of the tragedy. The newspaper
account noted the location of at least four people’s wounds (‘‘shot
in the legs’’; ‘‘shot in the head’’; ‘‘shot in the chest’’; ‘‘shot in
the back’’), and stated that ‘‘the pressroom was awash with blood’’
after the shootings. The photograph at issue in this action showed
Mr. Barger’s body and the room in which he was killed. The
caption which accompanied the photograph did not identify Mr.
Barger. The photograph was subsequently released for publication
by other media outlets in connection with their articles about the
shootings, a practice which is common in the industry.

On September 21, 1989, one week after the shootings, Mr.
Barger’s widow and three sons (the ‘‘Bargers’’) filed their
complaint against Courier-Journal and its parent corporation,
Gannett Co., Inc. (‘‘Gannett’’), based on the publication of the
photograph.' The complaint alleged state law claims of an invasion

1. Gannett is not liable to the Bargers for the same reasons that the Kentucky
Court of Appeals found that Courier-Journal was not liable. Even if Courier-
Journal were liable, Gannett’s ownership and control of Courier-Journal would

(Cont'd)

~~

of the Bargers’ rights to privacy and intentional infliction of
emotional distress. The complaint did not, and could not, denv
that the photograph was an accurate depiction of the scene of
Mr. Barger’s death.

Courier-Journal and Gannett moved to dismiss the complaint
and filed a brief which cited numerous similar cases which had
been dismissed. The Bargers filed a response, but cited no case
in which liability had been imposed for the publication of a
photograph which accurately depicted a newsworthy event, like
the one at issue here.’ Because the complaint failed to state a
claim upon which relief could be granted against either Courier-
Journal or Gannett, the trial court dismissed the complaint.

On April 12, 1991, the Kentucky Court of Appeals affirmed
the trial court’s order, in an opinion which rested entirely on state
law precedents. The Court of Appeals held that publication of
the photograph did not constitute the outrageous conduct necessary
to support a claim for intentional infliction of emotional distress
in Kentucky. In so holding, the Court of Appeals merely applied
the Kentucky Supreme Court’s holding in Humana of Kentucky,
Inc. v. Seitz, 796 S.W. 2d 1 (Ky. 1990), a case involving the

(Cont’d)

not be sufficient to impose liability on Gannett, pursuant to Kentucky law.
Poyner v. Lear Siegler, Inc., 542 F.2d 955 (6th Cir. 1976), cert. denied, 430
U.S. 969 (1977), citing Kentucky Auto Mechanics Service Co. v. Kentucky Auto
Parts Co., 267 Ky. 531, 102 S.W. 2d 1022 (1937).

2. The Bargers’ petition to this Court also cites no such case, and adds
more heat than light to this dispute. The Bargers’ contentions that Courier-
Journa! Editor David Hawpe was ‘‘sarcastic and less than cordial’’ to Mrs.
Barger and that Hawpe stated ‘Courier-Journal would print whatever they chose
to print and there was nothing the Bargers could do about it’’ (Petition at 3)
are false, and irrelevant to the issues in this action.

treatment of a hospital patient, which raises no federal or
constitutional issues. The Court of Appeals’ only mention of the
First Amendment to the United States Constitution was in a
footnote, which recognized that a contrary decision under state
law, imposing liability on Courier-Journal on these facts, ‘‘would
create serious questions regarding a possible violation of the
Courier’s first amendment rights’’ (Opinion at 5 n.1).

In rejecting the Bargers’ claim for invasion of privacy, the
Court of Appeals held that the Bargers lacked standing to maintain
the action, because their privacy was not invaded by the publication
of the photograph of their husband and father. That decision
was grounded solely in state law. The court separately held that,
even if the Bargers had standing to maintain the action, no invasion
of privacy could be established because ‘‘the Courier clearly was
authorized to publish the offending photograph on the ground
that it involved a matter of legitimate public concern’’ (Opinion
at 9). The latter holding was again based on state law, and no
federal issues were even discussed.

The Bargers moved the Supreme Court of Kentucky to grant
discretionary review. The Supreme Court denied the motion on
November 14, 1991.

The Bargers now seek to have this Court review the decision
of the Kentucky Court of Appeals, despite the fact that it rested
on state grounds and no federal question is presented.

REASONS FOR DENYING THE WRIT

THE COURT OF APPEALS JUDGMENT RESTED ON
STATE LAW GROUNDS AND THIS COURT LACKS
JURISDICTION TO REVIEW IT.

This Court has jurisdiction to consider this case only if the
judgment of the Kentucky Court of Appeals was based on federal
law. Michigan v. Long, 463 U.S. 1032 (1983). Even where a state
court mentions both federal and state grounds for its decision,
this Court will not review the judgment ‘‘if the same judgment
would be rendered by the state court after [this Court] corrected
its views of federal law,’’ because ‘‘such a review could amount
to nothing more than an advisory opinion.’’ /d. at 1042, quoting
Herb v. Pitcairn, 324 U.S. 117, 126 (1945).

In this case, there is no indication that the Kentucky Court
of Appeals based any of its decisions on federal law. In holding
that the Bargers failed to state a claim for relief for the tort of
outrageous conduct, the court relied on one state court decision,
Humana of Kentucky, Inc. v. Seitz, 796 S.W. 2d 1 (Ky. 1990).
That decision, which held that Kentucky would not recognize an
outrage claim unless the alleged conduct was ‘‘beyond all decency’”’
involved the treatment of a hospital patient and presented no
constitutional questions. :

The Court of Appeals’ only reference to the First Amendment
to the United States Constitution was in a footnote placed after
the analysis which rejected the Bargers’ claim on state law grounds.
The court said: ‘‘A contrary conclusion, we note, would raise
serious questions regarding a possible violation of the Courier’s
first amendment rights. See Hustler Magazine v. Falwell, 485 U.S.
46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988)’’. The mere mention

of the possible application of federal law, if a contrary conclusion
had been reached on the state law issues, is inadequate to invoke
the jurisdiction of this Court, because the decision clearly rested
on state, rather than federal, law.

The judgment rejecting the Bargers’ invasion of privacy claim
also rests on state law principles. The Court of Appeals held that
the Bargers lacked standing to bring the action, citing Restatement
(Second) of Torts § 6521 (1976). The court expressly recognized
that the Bargers’ complaint was properly dismissed ‘‘based solely
on the standing issue’’ (Opinion at 7).

An alternative holding — that the privacy claim fails because
the photograph involved a matter of legitimate public concern
— was made only because of ‘‘the likelihood that the issues
involved in the instant action will arise again in the future. . .”’
(Opinion at 7). The court held that the Restatement, as adopted
by the Kentucky Supreme Court as a matter of state law, barred
the Bargers’ privacy claim. Of course, even if what the court called
the ‘‘newsworthiness’’ defense to privacy claims were grounded
in the First Amendment, which is not the case, the fact that the
Bargers lack standing to bring a privacy claim in these
circumstances would constitute independent and adequate state
grounds for the decision, barring this Court’s intervention.

The Bargers have virtually conceded that the state court relied
on state law in affirming the dismissal of their complaint, noting
that ‘‘the Court’s failure to address the constitutional issue
presented to it’’ is ‘‘of interest’’ (Petition at 7). In fact, the court’s
failure to address or rely on any federal grounds is dispositive,
and the Bargers’ petition should be denied for that reason alone.’

3. Because the Bargers have argued that the Kentucky court was wrong
in its application of state law, Courier-Journal feels compelled to respond. The
(Cont'd)

| nr

THE BARGERS’ CLAIM FOR INTENTIONAL OR
RECKLESS INFLICTION OF EMOTIONAL DISTRESS WAS
PROPERLY DISMISSED.

The Kentucky Supreme Court first recognized the tort of
intentional or reckless infliction of emotional distress, also known
as the tort of outrage, in Craft v. Rice, 671 S.W. 2d 247 (Ky.
1984). Craft expressly adopted Restatement (Second) of Torts § 46
(1965):

One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other
results from it, for such bodily harm.

Restatement § 46. In 1990, the court reiterated the threshold
requirements for the tort, holding that conduct by hospital
personnel which the court characterized as ‘‘cold, callous, and
lacking sensitivity’ failed to meet the standards for an outrage
claim, and that the trial court had properly granted summary
judgment for the hospital company. Humana of Kentucky, Inc.
v. Seitz, 796 S.W. 2d 1, 1 (Ky. 1990).

The court emphasized comment d of § 46 of the Restatement:

It has not been enough that the defendant has acted

(Cont'd)

following discussion demonstrates that the Kentucky Court of Appeals was
correct in affirming the dismissal of the Bargers’ complaint as a matter of state
law.

with an intent which is tortious . . ., or that he
nas intended to inflict emotional distress, or even
that his conduct has been characterized by
**malice,’’ .... Liability has been found only
where the conduct has been so outrageous in
character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in
a civilized community. _

Humana, supra, 796 S.W. 2d at 3, quoting Restatement § 46,
comment d (emphasis added by court). The court noted that even
evidence which shows ‘‘a lack of compassion and lack of taste’’
is insufficient to meet the threshold requirement for the tort of
Outrageous conduct or intentional infliction of emotional distress
in Kentucky. Id., 796 S.W. 2d at 4.

The Humana decision reaffirmed that courts must make the
initial determination whether the conduct complained of satisfies
‘*the threshold requirements of the tort of outrageous conduct,
SO as to justify submitting the case to a jury’’. Humana, supra,
796 S.W. 2d at 1. That holding is in accord with the Restatement,
which provides that ‘‘[i]t is for the court to determine, in the
first instance, whether the defendant’s conduct may reasonably
be regarded as so extreme and outrageous as to permit recovery,
or whether it is necessarily so.’’ Restatement § 46, comment h.

Because the actions about which the Bargers complained failed
to meet the standard set forth in the Restatement and the Kentucky
Supreme Court’s opinions, the trial court properly dismissed the
Bargers’ complaint, as the Court of Appeals found. After
reviewing the facts of this case, the Court of Appeals held that,
even if Courier-Journal’s actions in publishing the photograph
showed a ‘‘lack of compassion and lack of taste,’’ the conduct
clearly was not ‘‘beyond all decency’’ (Opinion at 3-5). Therefore,

the Courier-Journal’s actions are not actionable in Kentucky under
the tort of outrage. The Court of Appeals merely applied well
settled state law, and there are no ‘‘special and important reasons”’
for this Court to review the decision. Sup. Ct. R. 10.1.

In a footnote, the Court of Appeals noted, but did not rely
on, the serious constitutional problems which would result from
imposing liability on a newspaper on these facts. This Court has
recognized that imposing liability for news publications because
they are deemed outrageous would seriously implicate rights
guaranteed by the First Amendment to the United States
Constitution.

‘‘Outrageousness’’ in the area of political and
social discourse has an inherent subjectiveness
about it which would allow a jury to impose
liability on the basis of the jurors’ tastes or Views,
or perhaps on the basis of their dislike of a
particular expression. An ‘‘outrageousness’’
standard thus runs afoul of our longstanding
refusal to allow damages to be awarded because
the speech in question may have an adverse
_ emotional impact on the audience.

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S. Ct. 876,
882 (1988).

Other courts have also recognized that the imposition of
liability for news publications deemed to be ‘‘offensive or
outrageous’’ would expose necessarily subjective news judgments
to risk, and impede the flow of important information to the
public. As the Massachusetts Supreme Judicial Court stated in
a case involving a photograph of an accident victim:

A newspaper account or a radio broadcast setting

10

forth in detail the harrowing circumstances of the
accident might well be as distressing to the
members of the victim’s family as a photograph
of the sort described in the declaration. A
newspaper could not safely publish the picture of
a train wreck or of an airplane crash if any of the
bodies of the victims were recognizable. The law
does not provide a remedy for every annoyance
that occurs in everyday life. Many things which
are distressing or may be lacking in propriety or
good taste are not actionabie.

Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E. 2d 286,
287 (1951).

As Kelley states and the trial court and Kentucky Court of
Appeals recognized, if the claims asserted by the Bargers had merit,
the media would always be at risk in reporting on any news event
resulting in death or physical injury. If the spouses and children
of those killed in Vietnam had a cause of action for the
‘‘outrageous’’ publication of photographs of the battle scenes in
which their relatives were killed, the public’s knowledge about
that war would have been severely limited. Are the Bargers
seriously contending that photographs of casualties of war and
victims of natural disasters like earthquakes may not be published
for fear the publication will ‘‘offend’’ and ‘‘outrage’’ the majority
of readers? The tort of intentional infliction of emotional distress
simply cannot be extended to accurate news publications on matters
of public concern.

Courier-Journal’s decision to publish the photograph at issue
here and to release the photograph for use in other news
publications fails the test of an action ‘‘so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable

11

in a civilized community.’’ Humana, supra, 769 S.W. 2d at 3.
The trial court was therefore correct in dismissing the Bargers’
complaint, and the Court of Appeals was correct in affirming
that decision, as a matter of state law. No special and important
reasons justify further judicial review in this action.

THE BARGERS’ CLAIM FOR INVASION OF PRIVACY
WAS PROPERLY DISMISSED.

A claim for invasion of privacy in Kentucky is governed by
‘the principles of that tort as enunciated in the Restatement
(Second) of Torts (1976).’’ McCall v. Courier-Journal & Louisville
Times Co., 623 S.W. 2d 882, 887 (Ky. 1981), cert. denied, 456
U.S. 975 (1982). The Bargers’ privacy claim fails because the
privacy rights of the Bargers were clearly not invaded by the
publication of a photograph of Mr. Barger’s body, and because
the matter depicted in the photograph, the shooting of Mr. Barger
in a rampage in which twenty other people were killed or injured,
was of legitimate concern to the public. The Kentucky Court of
Appeals holdings on both points simply applied well settled state
law, as expressed in numerous cases.

A. Because Only A Living Individual Whose Privacy Is Invaded
May Maintain An Action For Invasion Of Privacy, The Bargers’
Claim Fails.

Under the Restatement, which the Kentucky Supreme Court
has adopted as the law of privacy in Kentucky, it is black letter
law that only a living individual whose privacy is invaded may
maintain an action for invasion of privacy.

Except for the appropriation of one’s name or
likeness, an action for invasion of privacy can be

12

maintained only by a living individual whose
privacy is invaded.

Restatement (Second) of Torts § 6521. As the comment to the
Restatement expressly states, the cause of action ‘‘cannot be
maintained by other persons such as members of the individual’s
family, unless their privacy is invaded along with his.’’ Restatement
§ 6521, comment a. It is uncontested that the photograph at issue
in this action does not include any of the Bargers — the petitioners
in this action. Their claim that the photograph of Mr. Barger’s
body (unidentified) somehow invades their privacy was therefore
properly dismissed.

Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E. 2d
286 (1951), is squarely on point. The plaintiffs in Kelley were
the parents of a 15-year old girl killed in an automobile accident.
Their complaint alleged that a photograph of the girl’s body
depicted their daughter in a ‘‘deformed and hideous manner.”’
Id., 98 N.E. 2d at 287. The plaintiffs in Kelley, like the Bargers,
did not allege ‘‘that any likeness of the plaintiffs or either of them
was published.’’ /d., 98 N.E.2d at 287. The court dismissed the
complaint, noting that relatives of the person depicted in a
photograph simply may not bring an action under these
circumstances:

[I]f the right asserted here were sustained, it would
be difficult to fix its boundaries .... [I]f the
parents had a cause of action in a case like the
present there would seem to be no reason why other
members of the immediate family, the brothers and
sisters, whose sensibilities may also have been
wounded should not also be permitted to sue. The
only reference to the plaintiffs was that the girl
whose body appeared in the photograph was their

13

daughter. This can hardly be said to interfere with
their privacy.

Id., 98 N.E. 2d at 287-288.

As the Court of Appeals correctly noted, the Bargers ‘‘failed
to address this defense in their reply brief’’ to the Court of Appeals
and ‘“‘have cited no authorities which support their right to
maintain an action for invasion of privacy in the circumstances
presented here’’ (Opinion at 7). The Bargers have also failed to
address the issue in their petition to this Court. The Bargers simply
have no standing to maintain an action for invasion of privacy
based on the publication of a photograph of Mr. Barger’s body.
The Court of Appeals applied well settled state law in holding
that the Bargers’ privacy claim was properly dismissed, and there
are no ‘‘special and important reasons’’ to review its decision.

B. Because The Matter Publicized Was Of Legitimate Concern
To The Public, The Bargers’ Claim Fails.

In their petition to this Court, the Bargers have spent most
of their time discussing an independent ground for the dismissal
of their privacy claim. In order to succeed in a claim for invasion
of privacy based on allegedly unreasonable publicity given to one’s
private life, a plaintiff must plead and prove two elements,
including that the ‘‘matter publicized .. . is not of legitimate
concern to the public.”’

One who gives publicity to a matter concerning
the private life of another is subject to liability
to the other for invasion of his privacy, if the
matter publicized is of a kind that

(a) would be highly offensive to a reasonable
person, and

id

(b) is not of legitimate concern to the public.

Restatement § 652D (emphasis added). In this action, the Bargers
did not allege, and certainly could not prove, that the matter
publicized, the tragedy at Standard Gravure, ‘‘is not of legitimate
concern to the public’’. On the contrary, a rampage in which a
mentally disturbed person wielding an assault rifle kills eight of
his fellow workers and himself, and injures twelve others, is of
substantial, and very legitimate, public concern. Therefore, the
Bargers’ claim for invasion of privacy fails, as the Court of
Appeals correctly found.

Comment g to Restatement § 652D offers guidance into the
scope of ‘‘legitimate public concern’’, and specifically mentions
‘*homicides and other crimes’’:

Included within the scope of legitimate public
concern are matters of the kind customarily
regarded as ‘‘news.”’ . . . . Authorized publicity
includes publications concerning homicides and
other crimes . . . and many other similar matters
of genuine, even if more or less deplorable, popular
appeal.

Restatement § 652D, comment g. As the Court of Appeals noted,
comment f to that section expressly states that ‘‘the victims of
crime.’ are legitimate subjects of public interest, and notes that
‘*publishers are permitted to satisfy the curiosity of the public
as to its heroes, leaders, villains and victims, and those who are
closely associated with them.’’ Restatement § 652D, comment
f (emphasis added).

The applicability of the public interest limitation on the right
of privacy is a question of law, for the court, not a jury (or those
writing letters to the editor), to decide.

15

The dispositive issue is the question of the public
interest limitation on the right of privacy. This is
a question of law to be determined by the court
_. .. Disposition of right of privacy actions on
motion to dismiss or for summary judgment is a
frequent occurrence.

Buzinski v. DoAll Company, 31 Ill. App. 2d 191, 175 N.E. 2d
577, 580 (1961) (citations omitted). As a Florida Supreme Court
decision has noted, ‘‘the requirement of lack of public concern
is a formidable obstacle’’:

The developing law surrounding the private-facts
tort recognizes that the requirement of lack of
public concern is a formidable obstacle. In fact,
the ‘‘newsworthiness”’ defense has been recognized
by commentators as being so broad as to nearly
swallow the tort. See, e.g., Zimmerman, Requiem
for a Heavyweight: A Farewell to Warren and
Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291
(1983).

Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla.
1989). The decisions of numerous other courts support the view
that news articles and photographs concerning the victims of
homicides and other crimes, and tragedies of all sorts, simply
are not actionable invasions of privacy. In fact, Kentucky’s highest
court reached the same conclusion in a 1929 decision.

The plaintiff in Jones v. Herald Post Co., 230 Ky. 227, 18
S.W. 2d 972 (1929), was walking along a Louisville street with
her husband when he was assaulted by two men and stabbed to
death. The widow sued the newspaper, which published a story
about the incident and photographs of the plaintiff and her

16

husband. The complaint was dismissed and the Court of Appeals
affirmed:

The right of privacy may be defined as the right
to live one’s life in seclusion, without being
subjected to unwarranted and undesired publicity
... . Inshort, it is the right to be let alone. There
are times, however, when one, whether willingly
or not, becomes an actor in an occurrence of public
Or general interest. When this takes place, he
emerges from his seclusion, and it is not an
invasion of his right of privacy to publish his
photograph with an account of such occurrence
... . [Plaintiff] was an innocent actor in a great
tragedy in which the public had a deep concern

. On the whole, we conclude that the
publication of the photograph ... was not an
invasion of her right of privacy.

Id., 18 S.W. 2d at 973. In this case, as in Jones, Mr. Barger became
‘‘an innocent actor in a great tragedy in which the public had
a deep concern.’’ /d. The Bargers’ claim, like the complaint in
Jones, was therefore properly dismissed.

The rule laid down by the Kentucky Court of Appeals in
the Jones case in 1929 was affirmed by the Kentucky Supreme
Court in 1982. In McCall, supra, the court clearly stated that
the right of privacy does not extend to matters of public concern:

The right of privacy does not prohibit: (1) any
publication of a matter which is of public or
general interest.

McCall, supra, 623 S.W. 2d at 887. See also, Pearce v. Courier-
Journal and Louisville Times Company, 683 S.W. 2d 633, 637

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(Ky. App. 1985) and Bell v. Courier-Journal and Louisville Times
Company, 402 S.W. 2d 84, 88 (Ky. 1966).

Courts in other jurisdictions have also rejected invasion of
privacy claims very similar to the one brought by the Bargers.
Waters v. Fleetwood, 212 Ga. 161, 91 S.E. 2d 344 (1956), involved
a newspaper’s publication and distribution of photographs of the
victim of a gruesome killing. Unlike the instant action, the
photographs at issue in Waters were ‘taken at close range’ and
‘showed the decomposition of part of the child’s body, and
showed it wrapped in chains.’’ 91 S.E. 2d at 345. Nevertheless,
the Georgia Supreme Court held that the mother of the victim
could not maintain an action for the invasion of the mother’s
right of privacy:

The extracts from the above cases illustrate the
tendency of courts of other jurisdictions to hold
that, where an incident is a matter of public
interest, or the subject matter of a public
investigation, a publication in connection therewith
can be a violation of no one’s legal right of privacy.
We concur in this view. There are many instances
of grief and human suffering which the law can
not redress. The present case is one of those
instances. Through no fault of the petitioner or
her deceased child, they became the objects of
widespread public interest .... [T]he
dissemination of information pertaining thereto
would not amount to a violation of the petitioner’s
right of privacy.

Id., 91 S.E. 2d at 348. The court also noted that the same rule
barred the mother’s complaint based on the sale of copies of the
same photographs which appeared in the newspaper. Id. The latter
holding is directly applicable to the Bargers’ complaint about

O

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Courier-Journal’s routine release to other publications of the
photograph at issue here.

The Supreme Court of lowa has also rejected a privacy claim
based on a newspaper’s publication of photographs of the
mutilated and decomposed body of a murder victim. Bremmer
v. Journal-Tribune Publishing Company, 247 lowa 817, 76 N.W.
2d 762 (1956). The court found as a matter of law that the
discovery of the body of a missing boy was ‘‘of proper public
interest’’ and specifically rejected a contention that the public
had no legitimate interest in a photograph showing ‘‘the
appearance of the body’’, the same contention on which the
Bargers now rely:

Plaintiffs state: ‘‘While it may be true that the

public was interested in the fact that the missing

Bremmer boy was found and whether or not he

was dead or alive, the public had no legitimate

interest or concern in the condition of the body.’’ .

That conclusion is without support. From a news

standpoint the public is interested in the appearance

of the body of such a local victim. Such appearance

may be pictured by words or by photographs or

both.

*

Id. at 768 (emphasis added). The court also noted that ‘‘the courts
are not concerned with canons of good taste, and pictures which
startle, shock, and even horrify may be freely published . . . if
the occasion is such that his right of privacy does not protect
him from the publication.’’ /d.*‘

_4. Unabie to find any decision which supports their case, the Bargers cite
the dissent in Bremmer, ignoring the majority holding. See Petition at 13.

ee ee eee eee a es

ae ON NE NA tN mr et

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Relying on Restatement § 652D, numerous courts have
dismissed complaints based on the publication of news articles
and photographs. An example is Cape Publications, Inc. v.
Bridges, 423 So. 2d 426 (Fla. Dist. Ct. App. 1982), petition denied,
431 So. 2d 988 (Fla.), cert. denied, 464 U.S. 893 (1983), which
involved a newspaper’s publication of a photograph of a hostage
victim, clad only in a dish towel, after she was rescued by police.
A Florida appellate court reversed a judgment for the plaintiff,
stating that ‘‘[c]ourts should be reluctant to interfere with a
newspaper’s privilege to publish news in the public interest.’’ /d.

at 428. The court also stated:

Although publication of the photograph, which
won industry awards, could be considered by some
to be in bad taste, the law in Florida seems settled
that where one becomes an actor in an occurrence
of public interest, it is not an invasion of her right
of privacy to publish her photograph with an
account of such occurrence.

Id., 432 So. 2d at 427 (footnotes omitted).

There can be no doubt that the news reports about the
rampage at Standard Gravure were of legitimate public concern.
Indeed, the Bargers do not complain about the thousands and
thousands of words and descriptions written and published about
this news event, including the words about the conditions of the
bodies of the shooting victims (Petition at 14). Rather, they seek
to assert a claifn based on the explicit nature of one photograph.
This is nothing more than a claim based on ‘‘good taste,”’ a claim
which the courts have time and again refused to accept.

Apparently recognizing the weakness of their claims, the
Bargers have contended on appeal that the photograph was taken
‘through a blatant trespass,’’ and that the manner in which the

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20

photograph was taken supports their claims. The alleged trespass
was not mentioned in the complaint. The Kentucky Court of
Appeals properly rejected the Bargers’ belated attempt to convert
their case to a trespass action, for several reasons.

As the Court of Appeals recognized, only the owner or
possessor of property may maintain an action for trespass on it.
Marinaro v. Deskins, 344 S.W. 2d 817, 819 (Ky. 1961). Only
Standard Gravure, which owns and possesses the property where
the photograph was taken, would have standing to maintain a
trespass action, and neither it nor any public authority has filed |
any action regarding the photographer’s presence at the crime
scene.’

Moreover, even if the Bargers had pled their trespass claim
and could maintain a trespass action, neither of which is the case,
this Court has held that no trespass occurs when under the ‘“‘habits
of the country’’ entry is commonly made under the circumstances
presented. McKee v. Gratz, 260 U.S. 127, 136 (1922). As the
Kentucky Court of Appeals noted, entry of media personnel into
crime scenes is a commonly accepted practice. In dismissing a
claim by the mother of an accident victim concerning a photograph
of the ‘‘silhouette’’ left on the floor after the removal of the
victim’s body, the Supreme Court of Florida stated:

[I]t has been a long-standing custom and practice
throughout the country for representatives of the
news media to enter upon private property where

5S. Le Mistral, Inc. v. Columbia Broadcasting System, 61 App. Div. 2d
491, 402 N.Y.S. 2d 815 (ist Dept. 1978), upon which the Bargers rely, is a
trespass case brought by a restaurant owner for trespass in the restaurant by
a television reporter and camera crew. This case is easily distinguished from
Le Mistral. \t is not a trespass action and it is not brought by the owner of
the Standard Gravure property.

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disaster of great public interest has occurred —
entering in a peaceful manner, without causing any
physical damage, and at the invitation of the
officers who are investigating the calamity.

Florida Publishing Company v. Fletcher, 340 So. 2d 914, 918
(Fla. 1976), cert. denied, 431 U.S. 930 (1977).

In this case, the photograph was taken in a building adjoining
Courier-Journal’s offices, which is connected to those offices by
a series of hallways and tunnels, and no one directed the
photographer not to enter the premises, or told him to leave, before
the photograph was taken. As the Court of Appeals correctly
held, ‘‘the Courier cannot be denied its defense of newsworthiness
on the ground that its photographer committed a trespass in order
to obtain the victim’s photograph’’ (Opinion at 10). There are
no ‘‘special and important reasons’’ to review the Court of Appeals
decision, and the Bargers’ petition should be denied.

22

CONCLUSION

The Bargers suffered a tragic loss in the death of their husband
and father. Courier-Journal and Gannett regret any distress which
news coverage of their loss may have caused them. Nevertheless,
the photograph at issue simply is not actionable, as numerous
similar cases have held. The trial court and Kentucky Court of
Appeals merely applied those cases, and the holdings of the
Kentucky Supreme Court, in rejecting the Bargers’ claims on state
law grounds. This Court therefore lacks jurisdiction to review
the judgment. Even if this Court had jurisdiction, there are no
‘*special and important reasons’’ to review the Court of Appeals
decision. Indeed, every similar case is in accord with the decision.
Therefore, Courier-Journal and Gannett ask this Court to deny
the Bargers’ petition for writ of certiorari to the Kentucky Court
of Appeals.

Respectfully submitted,

JON L. FLEISCHAKER
Counsel of Record

WILLIAM H. HOLLANDER
WYATT, TARRANT & COMBS
Attorneys for Respondents
Citizens Plaza

Louisville, Kentucky 40202

(502) 589-5235

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0301%3A2. Public record. Not legal advice.