Petitioners Brief — Cantrell v. Forest City Publishing Co.

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AUG 23 1874

IN THE MICHAEL RODAK, JR.

Supreme Court of the Anited States

OCTOBER TERM, 1973

No. 73-5520

MARGARET MAE CANTRELL, et al,

Petitioner,

FOREST CITY PUBLISHING CO. a

corporation, JOSEPH ESZTERHAS

and RICHARD T. CONWAY,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR PETITIONERS

HARRY ALAN SHERMAN,

1709 Blvd. of the Allies,

Pittsburgh, Pa. 15219

412 471 7777

Counsel for Petitioners

Austin T. Klein,

1203 One Public Square,

Cleveland, Ohio

Of counsel

Washington, 0.C. e CLB PUBLISHERS e LAW PRINTING CoO. © ‘2° 2) 393-(625

Lo WY

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TABLE OF CONTENTS

\ Page

REPORTS OF OPINIONS BELOW ..................

Ne ag, ee oe ws 2

CONSTITUTIONAL AND STATUTORY PRO-

SUE IUOLED «........ occ cece ence ee 2

QUESTIONS PRESENTED FOR REVIEW ............. 4

STATOMONT OF THE CASE ...................... g'

eg Pe, ea 9

ARGUMENTS:

I. FREEDOM OF THE PRESS IS SUB-

JECT TO COMPLIANCE WITH LAW ........ 13

Il. THE DECISION OF THE COURT OF

APPEALS GROSSLY RESTRICTS THE

eg a a re 20

III. PRIVACY IS AS FUNDAMENTAL TO

FREEDOM AS A FREEPRESS ............ 23

IV. RIGHT OF PRIVACY IS GUAR-

ANTEED IN OHIO AND WEST VIR-

Se RET PES ees ea eee ee 27

V. PUBLIC OFFICIAL, PUBLIC FIGURE

AND PUBLIC INTEREST Ex-

PANSIONS OF THE SULLIVAN RULE

HAVE NOT NEGATED THE RIGHT

an ee 28

VI. THE CANTRELL RIGHTS WERE NOT

ETO Oe POE GR. i cic eee sees 37

VII. TIME, INC. V. HILL, 385 U.S. 374 IS

ONLY PARTIALLY APPLICABLE .......... 39

VIII. THE CRITICAL ISSUES OF TRUTH,

| OFFENSIVENESS, INTRUSIVENESS

| AND RECKLESSNESS ARE MATTERS

+ - FOR JURY CONSIDERATION ............ 48

ab, ELE TMS LE SORE IIMS Pe "*

(ii)

IX. THE VERDICT WAS NOT EXCESSIVE ..... : 52

Ra: GEA AR .6 vase bedwedecceve Sores 54)

TABLE OF AUTHORITIES

Cases:

Adderly v. State of Florida, 385 US.39 .............. 25

Afro-American Publ. Co. v. Jaffe, 366 F.2d 649 ...... 38, 46

PE OE TE, PO i Be 8k Sa ah xR Sh 9 0k en ee 27

Aquino v. Bulletin Co., 190 Pa. Super. 528 ............ 27

Associated Press v. N.L.R.B., 301 U.S. 103, 132-133 ...... 25

ae: 0 Ta, Ts Be Bn ee cs ve Bae ee we 38

Pea 0 FO, Bre i GO in 8 ees 53

Beacon Theatres, Inc. v. Westover, 359 U.S.500 ......... 52

ey UI ee SE in oo ks 8 OA 6S eae ne eee 14

Bemis Bros. Bag Co. v. United States, 289 U.S. 28,

Fhe aa, in cs oe. eee Oe 14

ie ©. TU: DP a ee a ik has ee se es 27

Bivens v. Six Unknown Named Agents of Fed. Bur. *)

ee eee ee 14

Blount v. T.D. Publ. Corp., 423 P.2d 421 ..............51

ee ea ere are frre 26

Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 ......... 34

Branzburg v. Hayes, 408 U.S. 679, 681,682 ......... 13, 21

eg a a ee ee er er 15

Chapman v. United States, 365 US.610 .............. 16

CO ©, WE, BPE Oe BOR. ois ced ce uae bt e% 16

Copley v. Northwestern Mut. Life Ins. Co., 295 F.

a sy koa n'a hae Heh we es ews 27

a te

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Page

Cordell v. Detective Publications, 419 F.2d 989

(Cir. | Sera penne eee nee eee e eee hig a «at

Curtis Publ. Co. v. Butts, 388 U.S. 130, 87 S.Ct.

ek oes CCA eS PE 25, 28

DeGregory v. Atty. Genl. of State of New sant

SONNE, SOP StS Ss ow 4 WS 4d oes Fhe ews 47

Dick v. New York Life Ins. Co., 359 U.S. 437 .......... 52

Dietemann v. Time, Inc., 449 F.2d 245 .........:..2.. 30

Fitzgerald v. United States Lines Co., 374 US.16 ........ 52

Gallick v. Baltimore & Ohio Railroad, 372 U.S. 108 ...... $3

Gambino v. United States, 275 U.S. 310 .............. 15

Gertz v. Robert Welch, Inc. (Decided June 25,

di eee ee eee ee eee Cee eee 21

Griswold v. State of Conn., 381 U.S. 497 ........... 22, 46

Herman Schwabe, Inc. v. United Shoe Mach. Corp.,

207 © .26 906, cut. Ge. 309 US. O65 . owe ceed 53

a A ere me 27

Jenkins v. Dell Publ. Co., 251 F.2d 447 ............00- 27

someon: +. Tent, tee., 320 Fee..BSF nv vec kets 36

Katz v. United States, 389 US. 347 ......... aoe 15, 28

Sees ©; TE, Dar te ee ik ow ws cae keenk 53

eet Gide, 0 Oe 15, 46

wioy. ©. Amon, 345 UB 3S oka a rR i 20

McCoy v. Faulkenberg, 53 Ohio App.98 .............. aa

Meeker v. Ambassador Oil Corp., 375 U.S. 160 ........4. 52

payer «., Pee, 202 UB Dee kk ds he's se ec noo 20

New York Times Co. v. Sullivan, 375 U.S. 254, 84

S.Ct. 710 0. eee ee eee eee teens 21, 25

Olmstead v. United States, 277 US. 438 .............. 16

(iv)

Page

Pearson v. Dodd, 410 F.2d 701, cert. den. 395 US.

ee oe A Ga aa che ce Mk cease 53

Purcell v. Westinghouse Broadcasting Co., 411 Pa.

ON io 6 a ee ek a lecpAewds ae 6 35a Ss 26

Regalado v. California, 374 U.S.497 ...... ene eee oe 16

eee &; TE, BES a ea a a chee a o's 53

Rogers v. Missouri-Pacific Railroad, 352 US.500 ........ a

Rosenbloom v. Metromedia, Inc., 415 F.2d 892,

DPE Shes Pe ee hi oo 6s 6 hk ow 6 oe eee 35

Rowan v. United States Post Office, 38 U.S.L.W.

ee es cs os 3 oe ee es 48

ee Se ne i gs oc a sk oe bbw e es Con 44

Schneckloth v. Bustamonte, 93 S.Ct. 2041 ............. 48

Sellers v. Time, Inc., 423 F:2d 887, cert. den. 91 :

Ms Oe a se ek 0 ee ks ee 35

Silverman v. United States, 365 U.S.505 ........... 15, 16

Simler v. Conner, 372 U.S. 221 wee eee eee eee eens 52

Souder v. Pendleton Detectives, Inc. 88 So.2d 716 ........ 27

Stanford v. State of Texas, 379 U.S.476 ........... 23, 38

Sutherland v. Kroger Co., 144 W.Va. 673 .............. 27

Tehan v. United States, etc., 382 US.406 .......... 38, 46

The Western Maid, 257 US. 419, 433 ..........2.024%. 14

Teh, TE Y, Te. BRE eos 5 26s ke he ws 33, 38, 39

Time, Inc. v. McLaney, 406 F.2d 565, cert. den.

Be os a oa cs ok oh os 0 9 8 Sees 36

Nk oe eee 34, 51

United Medical Laboratories v. Columbia Broad-

casting System, 404 F.2d 706, cert. den. 397

ee ae ot Se ee ae ee ee ee oe ae ee ee ee ee ee ee ee ee ee

—_

(v)

Page

Walker v. Puljtzer Publ. Co., 388 U.S. 164 .......... Ts ae

Wasserman v. Time, Inc., 424 F.2d 920, cert. den.

EE Oe ree oe ee hi sees obs teas t i. 34

Watkins v. United States, 354 US.178 ............ 18, 39

West Virginia State Board of Educ. v. Barnette, 319 :

Oe oy ke eee on Ke ei S's oo 22, 27

White v. Hall, 118 W.Va. 85 ............. 2s eee eee 45

Winters v. People of State of New York, 333 US.

es oe sw dc kb wee heen ee oe 33

I I Sgn sb noes env ccuse< 20

Young v. That Was the Week That Was, 423 F.2d =

Ns ie hawk Ud ahs eee ee ews 27

Miscellaneous:

Fourth Amendment, U.S. Constitution ................ 14

Samuel D. Warren, Louis D. Brandeis, The Right of

Ee er eee ee 19

iy ee, ee, es a as, 13 kk sc ns a 5 oie he os 27

ee a re ee ee 38

Pe rs OR, OE OT ee rece ees 38, 46

ee ee, a a ci wwe wee Swe oe 38

76 C.J.S. Reckless, Recklessly, Recklessness, p.68 ..:..... 44

reew vole Cool Kists Law, pees. 5051 2... 2.6 ec ce. 41

Webster’s Unabridged Twentieth Century Dictionary ...... 49

IN THE

— Court of the United States

OCTOBER TERM, 1973

: No. 73-5520

MARGARET MAE CANTRELL, et al,

: Petitioner,

—~e

FOREST CITY PUBLISHING CO. a

corporation, JOSEPH ESZTERHAS

and RICHARD T. CONWAY,

Respondents.

-ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT :

BRIEF FOR PETITIONERS

REPORTS OF OPINIONS BELOW

The Opinion and Judgment of ‘the United States

‘Court of Appeals for the Sixth Circuit is reported in

484 F.2d 150, and was entered September 10, 1973,

reversing judgment entered on special verdicts _ for

petitioners in the United States District Court for the

/ / ? \ °

‘ 5 ; :

‘ Cd

Northern District. of ‘Ohio, Cleveland, Ohio, in Civil

' Action No. 68-162, on September 14, 1972. Motions of

respondents for judgment n.o.v. or new trial were

denied in the District Court on October 13, 1972.

Notice of Appeal to the Court of Appeals was filed

November 10, 1972.

JURISDICTION

The jurisdiction of the Supreme Court is invoked

under 28 U.S.C. Section 1254(1). Petition for writ of

certiorari, together with motion for leave to proceed in

‘forma pauperis pursuant to 28 U.S.C.A. 1915 and

Supreme Court Rule 53' were lodged Septefnber 26,

1973.,The writ of certiorari was granted July 8, 1974

and leave granted concurrently to proceed in forma

pauperis. | |

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

_ This case involves the personal right of privacy as ~

evolved from the “penumbral” provisions and implica-

tions of the First, Fourth, Fifth and Ninth Amend-

ments, inter alia, of the Constitution, and the laws of

privacy of West Virginia and Ohio as recognized by

their highest courts; and the First Amendment freedom

of the press provision as violating same.

The First Amendment’s “right of the people

peaceably to assemble”, (as applied herein to the

Cantrell family in their private home) is set forth in

U.S.C. Constitution, page 319, n. 14.

| mr

The Fourth Amendment states: “The right of the

people to be secure in their persons, houses, papers and

effects,...”; and its application to the within case is

asserted on the decisional bases set forth in U.S.C.

Amendment 4, p. 361, notes 23 and 1144.

The Fifth Amendment’s prohibitory clause:

“ ... mor be deprived of life, liberty, or property

without due process of law”; as set forth in U.S.C.

Constitution, Amendment 5, p. 418, and herein asserted

as applicable as interpreted in cases cited under note

42. ‘

The Ninth Amendment’s mandate that: “The

enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained

by the people”, as set out in U.S.C. Constitution,

Amendment 9, is made applicable to the within case by

decisional interpretation set out in note 4a of the 1974

‘pocket part, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705.

The Seventh Amendment’s protection of petitioners’

right to trial by jury, and its assurance that “no fact

tried by a jury, shall be otherwise reexamined in any

Court of the United States, than according to the rules

-of the common law’’, as set out in U.S.C. Constitution,

Amendment 7, p. 696, is made applicable to the within

case by notes 201 and 203, where, as here, the jury

found that the publication was knowingly false or in

reckless disregard of truth or falsity, constituting malice

as defined in New York Times v. Sullivan, if the same

were in fact here controlling.

> : ‘ 4

QUESTIONS PRESENTED FOR REVIEW

I. In a diversity suit asserted on West Virginia right of

privacy law as well as on Ohio’s right of privacy law,

where the complained of invasion consisted of the

physical, uninvited and unforgiven intrusion by re-

spondents into the private and secluded home of

petitioners, neither of whom were public officials or

public figures, and in the absence of the mother,

Margaret Mae Cantrell, the taking of uncomplimentary

photographs (50) therein, several of which were

thereafter published in a lengthy, illustrated, knowingly

false and fictionalized Sunday feature story, emotional-

ly distressing and humiliating to petitioners; should a

jury verdict in their favor and judgment thereon be

voided for lack of specific proof of malice? (Affirmed

by Court of Appeals)

Il. Is the “‘general right to privacy” of individuals—

the “right to be Jet alone by other people’”—no longer

to be “left largely to the law of the individual States”

as declared by the Supreme Court in Katz v. United

- States, 389 U.S. 347, 352?

III. Is the Seventh Amendment right to trial by; jury

in civil cases applicable in invasion of privacy cases

involving intrusions, trespasses and physical acts other

than mere knowing or reckless publication of false and

fictionalized defamation of private citizens, including

infants, other than public officers or public figures?

(Denied in effect by the Court of Appeals)

IV. Does a knowingly false publication of an

uncomplimentary and humiliating featyre article not

published on-any newsworthy occasion and incorpo-

rating several of the embarassing photographs obtained

by trespass into the private home of petitioners,

without invitation, and in the absence and without the

knowledge or permission of the mother of seven infant

family members, ranging in age from 2 to 17 years,

wipe out petitioners’ Constitutional and West Virginia

“protected” right of privacy unless they otherwise

proved malice in such —— (Affirmed by the

Court of Appeals)

STATEMENT OF THE CASE

On December 14, 1967, the Silver Bridge spanning

the Ohio River between Point Pleasant, West Virginia,

~-and*~Kanauga, Ohio collapsed, precipitating motor

vehicles thereon and their octupants in twisting: steel

and crunching automobiles to the waters and banks

below, with macabre loss of 44 lives and numerous

injuries to survivors. One of the fatalities was Melvin

Aaron Cantrell. His widow, Margaret Mae Cantrell,

seriously injured in the wreckage of their automobile on

the Ohio shore, survived. Another occupant of the

ill-fated car was also killed. None of the seven children

of the Cantrells, then ranging in age from 16 years to

one year, were involved in the disaster.

Shortly prior to the August 4, 1968 knowingly false

publication involved herein, respondents Joseph

Eszterhas, then a reported, and Richard T. Conway, a

photographer, both employed by the corporate respon-

dent, Forest City Publishing Co., without invitation or

knowledge of Mrs. Cantrell or of any other member of

the family, came upon the land and entered the home

of the Cantrell family, and in the absence of Mrs.

Cantrell, admittedly took 50 photographs of the

children and of the premises; and Eszterhas (who did

not testify on trial or by deposition) assertedly

“interviewed” the older of the children. On August 4,

1968, the Sunday supplement of the corporate

respondent’s Cleveland Plain Dealer carried the

knowingly false feature article of several pages spread,

entitled “Legacy of the Silver Bridge”, fictionalizing

conversations with Mrs. Cantrell, falsely misrepresenting

the facts of the disaster as related to Mrs. Cantrell and

her husband, and cruelly reflecting on the little

Gallipolis Ferry, West Virginia home, possessions,

appearances and condition of the Cantrell family and

children. The theme of the publication was to make of

the “statistic” of Melvin Aaron Cantrell, and his demise

a featured “microcosm of the scar which will remain

permanent and stark upon the spirit of people...” of

Appalachia, the ‘“‘hillbillies”, that is, who lived there,

and who “had little to live for and had little they

owned ...” who “had wives and children, and that’s all

they had”.

Several of the 50 photographs taken were reproduced

«in the article, all of those published depicting the

children and the Cantrell home as being most pathetic,

dirty, uncared for, and neglected.

There was no news event or occasion for the

uninvited intrusion into the private home and lives of

the Cantrell family; and the sole intent of the

respondents was to create a feature article for the

interest of their reading public. (A vol. I, p. 62, 75)

The knowlingly false and fictionalized article was so

offensive to the community as to provoke editorial and -

frontpage criticism in a local publication, inter alia. (A.

————

—_

Plaintiff's Exhibit 7, Defendants’ Exhibit 1) The

children were embarassed at school and in public. (A.

vol. T, p. 29)

The District Judge had sustained motions to dismiss

as to the six youngest children on the basis that they

were too young to have suffered humiliation or

emotional trauma; and rejected the claim for punitive

or exemplary damages prior to submitting to the jury

the following special verdicts, to which the jury returned

the answers presented:

“Special Issue No. 1: Do yow find from a

preponderance of the evidence that the defendants,

Joseph Eszterhas, Richard T. Conway and Forest City

Publishing Company, or any combination of said

defendants, invaded the privacy of the plaintiffs, or

either of them, within the definition or instruction of

the Court?

“Answer: Yes.

“If you have answered Special Issue No. 1 yes, and

only in that event, then answer the following Special

Issue No. 2.

“Special Issue No. 2:. Designate the defendants that

invaded the privacy of the plaintiffs or either of them.

“Answer: Joseph Eszterhas—yes. Richard T. Conway

—yes. Forest City Publishing Company—yes.

“If you have answered Special Issue No. 2 in the

affirmative, and only in that event, then answer Special

Issue No. 3.

“Special Issue No. 3: Designate the plaintiff (238) or

plaintiffs whose privacy was invaded by the acts of the

defendant or defendants.

““Answer: Margaret Mae Cantrell—yes. William David

Cantrell—yes.

“If you have answered Special Issue No. 3 in the

affirmative, and only in that event, then answer Special

Issue No. 4.

“Special Issue No. 4: If your answer is affirmz<tive to

either one of Special Issues No. 1 and 3, in what

amount, if any, measured in dollars and cents, do you

find from a preponderance of the evidence that the

individual plaintiffs were damaged?

““Answer: Margaret Mae Cantrell, $45,000, William

David Cantrell, $15,000.

“The six jurors must agree on each answer,

affirmative or negative, that. you give to each of the

above special issues.

“Verdict of the jury: We, the jury, have answered the

above and foregoing special issues as herein indicated

and herewith return the same into court as our verdict.

Foreman of the jury, Alfred Lesti.”

Members of the jury, is this your verdict?

(239) (The jurors indicate it is their verdict.)

In instructing the jury, the District Court had said

(A. Vol. I, p. 103):

“Thus if it be your conclusion and determination

that plaintiffs have failed to prove by a preponder-

ance of the evidence that defendants invaded the

privacy by publishing a report or article about

them with knowledge of its falsity or in reckless

disregard of the truth, you need not deliberate

further and you will return a verdict in favor of

the defendants”.

On September 14, 1972, the District Court entered

judgments:on the verdict, and on October 13, 1972 an

order was filed denying the defendants’ motion for a

judgment non obstante veredicto or in the alternative

for a new trial. The defendants appealed to the United

States Court of Appeals for the Sixth Circuit on

November 10, 1972. The Opinion and Judgment of the

Court of Appeals reversing the District Court judgment

and remanding for entry of judgment for the

‘ defendants was filed September 10, 1973. This petition

for certiorari was forwarded to the Clerk of this

Honorable Court on September 24, 1973, together with

a motion for leave to proceed in forma pauperis upon

the original record, and the appendices accompanying

the brief and reply brief of the defendants in the Court

of Appeals.

Federal jurisdiction in the District Court was asserted

on the basis of divessity of citizenship and an amount

in controversy in excess of Ten Thousand Dollars for

each plaintiff, exclusive of interest and costs. Juris-

diction was admitted.

SUMMARY OF ARGUMENTS

A. The Questions involved are substantial and require

resolution by this Honorable Court; so as to obviate

further lower court confusion and conflict arising from

decisions herein involving the judicially expanded First

Amendment rights of publishers, in relation to the right

of a private person “to be let alone”, described by the

late and revered Justice Louis D. Brandeis as “‘the - |

most valued by civilized men”. (1928):

Under the holding of the Court of Appeals, the

subsequent publication of even a knowingly false,

fictionalized feature article, unconnected with any

current newsworthy event, concerning private persons in

their private home, after entry therein by uninvited

trespass, during which trespass the publisher’s photo-

grapher took 50 uncomplimentary and embarassing

photographs of the seven minor children in the absence

and without knowledge or permission of their widowed

mother; that nevertheless such publication, including

several of the photographs, bring into play the New

York Times v. Sullivan extension of the First

Amendment’s guarantee of freedom of the press so as

to supercede petitioners’ right of privacy under such

circumstances. Such holding conflicts with decisions of

the Supreme Court.

B. The case is of great importance in the “expanding

law of invasion of privacy”, in that the decision of the

Court of Appeals in effect encourages unwanted and

uninvited invasions by intrusion, deception and trick

into the private homes of private persons by uninvited

and unwanted photographers and reporters whose

publisher can, under the holding of the Court of

Appeals, assure them immunity from answerability in

damages by merely publishing the purloined, twisted

and fictionalized product of their intrusive invasion of

such privacy.

C. The decision of the Court of Appeals enlarges the

Constitutional rights of publishers beyond the holdings

herein and to the point of eliminating the right of

privacy of all persons even in their private residences,

though they are neither public officers or figures nor

involved in or part of any news event or timely matter

of public interest.

D. The decision of the Court of Appeals in effect

limits jurisdiction of the federal courts to make judicial

inquiry or review, and holds that the judgments of the

publishers must control in all cases catalogued by them

alone as “‘“newsworthy”.

=7"

E. The decision of the Court of Appeals wipes out

the right of victims of intrusive invasions of privacy to

Seventh Amendment guarantee of trial by jury in civil

actions asserted upon prevailing State laws and

constitutions protecting such private rights.

F. The decision of the Court of Appeals ignores the

established and accepted authorities such as Dean

Prosser whose work on Torts, 3rd ed. p. 832 has been

widely approved by our courts, citing the four separate

torts involved in an invasion of privacy, such as are

involved in the within case, namely: “(1) intrusion upon

the plaintiff's seclusion or solitude, or into his private

affairs; (2) public disclosure of embarassing private facts

about the plaintiff; (3) publicity which places the

plaintiff in a false light in the public eye; and

(4) appropriation, for the defendant’s advantage, of the

plaintiff's name and likeness”; 62 Am. Jur. 2d, Privacy,

par. 1, 26. The Court of Appeals makes no distinction

in cases based solely on publications and those involving

uninvited physical intrusions into the private, personal ~

homes of private persons, not incidental to any current

news or matter of public interest, and resulting in

unwanted and humiliating exposure by false, fictiongl-

ized and defamatory distortion of the very ae

home and personal circumstances of the petitioners.

G. The decision of the Court of Appeals ignores or

misconstrues the holdings of Curtis Publishing v. Butts,

388 U.S. 130, 87 S. Ct. 1975; the “penumbral” privacy

rights decisions of West Virginia State Board of

Education v. Barnette, 319 U.S., 624, 63 S. Ct. 1178;

Stanford v. State of Texas, 379 U.S. 476, 85 ot

506; and the “general right to privacy” holding of Katz

v. United States, 389 U.S. 347, inter alia, as well as

—

negating the State laws of West Virginia and Ohio in

the matter of physical intrusion of privacy cases.

H. The decision of the Court of Appeals fails to

distinguish between the basic essentials of actions of

defamation and those of invasion of privacy, holding

that malicious untruths in either form of action must

be established affirmatively by a plaintiff at trial;

whereas even a truthful but improper exposure of

private matters can give rise to an action for invasion of

privacy; Time, Inc. v. Hill, 385 U.S. 374.

I. The decision of the Court of Appeals conflicts

with the decisions of other Circuit Courts and with the

_ decisions of the Supreme Courts of Ohio and West

Virginia; Young v. That Was the Week That Was, etc.,

423 F.2d 265; Cordell v. Detective Publications, 419

F.2d 989; Housh v. Peth, 165 Ohio St. 35; Sutherland

v, Kroger Co., 144 W.Va. 673.

CONCLUSION

“J. For til foresoing reasons, it is respectfully urged

that the judgment of the United States Court of

Appeals for the Sixth Circuit ‘be reversed and judgment

of the District Court on the jury verdict be ordered

reinstated.

ae 4!

ARGUMENT

FREEDOM OF THE PRESS IS SUBJECT TO

COMPLIANCE WITH LAW

Myopic proponents of absolutism in freedom of the

press would preempt for any individual, group or

corporate publishers, sole right and power to judge

journalistic values, regardless of their journalistic

objectives. They assume either that every publisher is

motivated to seek and air truth, or that a sinner among

them will always be exposed by others sharing that

absolute right and power. Only through such absolute

freedom of the right to publish, it is argued, can a “free

society” be maintained. Without such absolutism of

right and power in a free press, a “freeypeople....

could not long remain free,” declares =... Alan

Cranston (California) in his article, First Means First,

Trial Magazine, May/June 1973, p.31.

To paraphrase Shakespeare, “with itself in either

eye...” even the First Amendment’s guarantee of

freedom of the press can assume so disproportion te a

stature as to obliterate from logic’s view equally

essential rights implicit in freedom. Not the least of

cynics would deny justice its historic role in the pattern

of our societal fabric. A classic example of resolution of

a conflict resulting from an uninhibited, journalistically

oriented assertion of First Amendment privilege on the

one hand and the societal or public interest in justice

based on truth, is the decision of this Honorable Court

in Branzburg v. Hayes, 408 U.S. 679. “The use of

= —

confidential sources by the press is not forbidden or

restricted; reporters remain free to seek news from any

source by means within the law.” (408 U.S. 681-682)

Even the practice of religion is not guaranteed

absolute, self-interest license by the First Amendment.

Obviously, though it be mandated by a religious

concept, cannibalism would require the restraint of our

law, based as it is on the right of each person to life,

liberty and the pursuit of happiness.

As this honorable Court has sagely observed:

*.... power, once granted, does not disappear like a

magic gift when it is wrongfully used .... .Accordingly,

as our cases make clear, the Fourth Amendment

operates as a limitation upon the exercise of federal '

power regardless of whether the State in whose

jurisdiction that power is exercised would prohibit or

penalize the identical act if engaged in by a private

citizen. It guarantees to the citizens of the United

States the absolute right to be free from unreasonable

searches and seizures carried out by virtue of federal

authority. And “where federally protected rights have

been invaded, it has been the rule from the beginning

that courts will be alert to adjust their remedies so as

to grant the necessary relief’. Bell v. Hood, 327 U.S.,

Cas... : ; see Bemis Bros. Bag Co., v. United States,

ZOP Witte 205; OO: ous ; The Western Maid, 257 USS.

419, 433..... ”: Bivens v. Six Unknown Named Agents

of Fed. Bur. of Narc., 91 S. Ct. 1999, 403 U.S. 388.

The Fourth Amendment is not of course directed

solely against the federal government. It provides:

‘

“The right of the people to be secure in their

persons, houses, papers and effects, against un-

reasonable searches and seizures, shall not be

violated”. ; |

The United States Department of Justice in Bivens

had argued that the rights of privacy are creations of

state and not of federal law, and that only a state

action in tort was available to the plaintiff. The

Supreme Court rejected the argument, saying (p. 2002):

“We think that respondents’ thesis rests upon an

‘unduly restrictive view of the Fourth Amend-

ment’s protection against unreasonable searches

and seizures by federal agents, a view that has

been consistently . rejected by this Court”

Sere eaens “And our recent decisions , regarding

electronic surveillance have made it clear beyond

peradventure that the Fourth Amendment is not

tied to the niceties of local trespass laws. Katz v.

United States, 389 U.S. 347.,...... ; Berger v.

New York, 388 US. 41....+.. ; Silverman y,

United States, 365 U.S. 505, Shi.

Does a private citizen have greater right to invade the

privacy of another private citizen that does the federal

government? Even thotgh such invasion were expressly

authorized by State law, the Fourth Amendment

prevents such trespass;,Gambino v. United States, 275

U.S. 310; Byars v. United States, 273 U.S. 28; Bivens,

supra. .

Uninvited, unauthorized violations of one’s person,

home, property and other private, lawful rights offend

both state and federal law.

Nor may states or state. agencies ignore the Fourth

Amendment’s mandate; Mapp v. Ohio, 367 U.S. 643.

The protection of the Fourth Amendment is

forcefully asserted in all cases where governmental

violation involves any physical trespass into the

“protected zone”; Olmstead v. United States 277 U.S.

438; Silverman y, United States 365 U.S. 505; Regalado

v. California, 374 U.S. 497; Clinton vy. Virginia, 377

U.S. 158; Chapman yv, United States, 365 U.S. 610.

All of the foregoing citations, of course, deal with

. Fourth Amendment protections in criminal cases; for

obviously, “unreasonable searches and seizures” are

committed during official governmental law enforce-

ment proceedings. However, the rights of privacy are

equally guaranteed in our civil law.

The respondent publisher, apparently seeks to obtain

judicial termination of the right of privacy entirely.

The Plain Dealer justifies the actual, uninvited,

intentional trespasses into the home and effects of the

Cantrell family by its former reporter, Eszterhas (who

ignored notices to. be deposed in advance of trial, and

who, though personally served, made no appearance at

_ trial) and of its photographer, Conway, on the sole .

premise that the material thus acquired, though

substantially fictionalized’ in its feature article was of

“public interest”. Even the asserted “public interest”,

admittedly is secondary to the newsworthiness of the x4

Silver Bridge disaster ‘eight months earlier. No news

' “happening” attracted the trespassers on the occasion

of their unannounced visit.

Not a single photograph, however, in the fictionalized

feature spread of August 4, 1968, was of the Silver

Bridge, or the scene of the disaster. The article was not

newsworthy in any sense whatever; not a single Cantrell

child was at the site of the bridge fall on December 14,

1967; nor was any part of the news stories relating to

same; nor wa’ the Cantrell home (miles away from the

Silver Bridge) implicated therein. Yet ~the publisher

would justify 'the trespass into the private home and

=>"

lives of this family on the “public interest” extension

of Sullivan. Because Melvin Aaron Cantrell was, by the

tragedy of the previous December projected into the

news and” into eternity, respondents’ argue that his *

family’s supposed private moods, thoughts, tastes,

habits, dréss and dreams, and their home became public

property. Respondents urge that uninvited, uninhibited

and highly imaginative reporters, fiction writers, and

cameramen, have a constitutionally protected right to

expose the Cantrells, without permission, to ridicule,

embarrassment and humiliation by a highly fictionalized

feature article whenever the spirit (or desire for

economic gain) moves them so to do. To paraphrase the

23rd Psalm, respondents in effect assert that they have

a right “..:to dwell in the house of Cantrell forever”.

Anointed by the Supreme Court with the spreading oil

of Sullivan immunity from legal liability for false

publication in some circumstances, the Plain Dealer now

declares its own, private right to an absolute privacy

from the eyes of the law, no matter the nature of its

trespasses, or the scope or target of its lies. It sees itself

as above and beyond the law’s reach. It may, it

believes, ignore totally the historic “sanctity” of home

and family. It may, if it choose, crucify truth. Its so

‘recently declared “immunity” is already conceived and

translated by it into “impunity”. Who can now gainsay

its reporters and cameramen entry into one’s home?

Who dare deny an Eszterhas access to a closet?; or to

indulgence in his flights of fancy as substitute for fact;

or his joy in mocking the dead and falsely labelling and

demeaning the living? The Cantrells may close their

windows and doors to shut out the winds and weather,

and storms; but no longer is their home a “castle”; no

longer may they maintain locks which may interfere

with even uninvited “literary” pursuit. .New kings are

born that can do no wrong!; a royalty for profit and

power without legal or moral restraint!; and supposedly

ordained by the First Amendment to the Constitution!

A logical sequel to such interpretation of the

Constitution would be that any reporter, writer or

cameraman who is denied entrance to one’s home in

similar circumstances may claim damages for inter-

ference with a Constitutionally guaranteed federal right!

The Supreme Court, in Watkins v. United States 354

U.S. 178, recognizes the right to privacy, stating: ee

“There is no general authority to expose the

private affairs of individuals without justification

in terms of the functions of the Congress. .... No

inquiry is an end in itself; it must be related to,

and in furtherance of, a legitimate task of the

Congress. Investigations conducted solely for the

personal aggrandizement of the investigators, or to

‘punish’ those investigated, are indefensible.

“Clearly, a Congressional investigation is subject to

the command that the Congress shall make no law

abridging freedom of speech or press or assembly.

While it is true that there is no statute to be

reviewed, and that an investigation is not a law,

nevertheless an investigation is part of lawmaking.

It is justified solely as an adjunct to the legislative

process. The First Amendment may be invoked

against infringement of the protected freedoms by

law or by lawmaking.

“We cannot simply assume... that every Congres-

sional investigation is justified by a public need

that over-balances any private rights affected. To

do so would be to abdicate the responsibility

placed by the Constitution upon the judiciary to

insure that the Congress does not unjustifiably

encroach upon an individual's right to privacy, nor

abridge his liberty of speech, press, religion or

assembly.”

In this important 1957 decision, the Supreme Court

thus takes judicial notice of an “individual’s right to

} privacy” in non-criminal proceedings of -“ the highest

public order. iy

Particularly as it relates to the methods employed in

news gathering by mass media of today, it is interesting

to note the prophetic observation of Samuel D. Warren

and Louis D. Brandeis, in 1890, in their article, “The

Right To Privacy”, published in the Harvard Law

Review: (4 Harv. L. Rev. 193):

“Instantaneous photographs and newspapers’ enter-

prises have invaded the sacred precincts of private

domestic life; and numerous mechanical. devices

threaten to make good the prediction that ‘what is

whispered in the closet shall be proclaimed .from

> 99

the house top. ba.

What were still frightening prospects 84 years ako,

before the advent of telestar, computers, electronic

eavesdroppers, recording devices, and the modern

presses, radio, television and air-freight distribution now

employed by the publishing industries, are stark, bnital

realities of today. The “threat” to “invade the sacred

precincts of private and domestic life” has too often

been outrageously carried out; and only the law of:

privacy as enforced in our courts stands between the

personal right to “freedom” of the individual and the.

growing and self-engorging “power” of the press.

How Mrs. Cantrell managed her seven children, '

difficult though it may have appeared to outsiders,

was, so long as she violated no law in so doing, strictly

Seg SURES ee ee Pee eee eR PN SOLES SLE EK I GETS.

her private affair. The Supreme Court had long ago

recognized a mother’s right to the “care, custody,

management and companionship of her minor chil-

dren’’, as being “rights far more precious than property

Tights”; May v. Anderson, 745 U.S. 535; and almost 50

years prior to the invasion of the Cantrell privacy, in

Meyer yv. Nebraska, 262 U.S. 390 (1923) the Supreme

Court had declared that the due process clause

protected the right “‘to marry, establish a home and

bring up children”.

The curiosity of the Plain Dealer, its reporter and

photographer, and the literary appetites of their reading

public could not warrant exposure of the family’s

; private life in the circumstances; a fortiori, where

trespass, fictionalization and bizarre distortion of the

publication visited upon them extended humiliation.

In Wisconsin v. Yoder, 406 U.S. 205, the Supreme

Court reaffirmed the right of the “‘plain- people” to be

let alone.

Il.

THE DECISION OF THE COURT OF

APPEALS GROSSLY RESTRICTS THE

RIGHT OF PRIVACY.

The learned Court of Appeals for the Sixth Circuit

has by its holding dangerously narrowed the right of

privacy while unwarrantedly expanding the First

Amendment rights of 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 substi-_

wat

sce

_——

tute its judgment for -that of the publisher” as to

“newsworthiness”, says the Court at page 11 of its

official opinion. Apparently the Court ignores what it

deems to be unimportant violations of law by reporters

in such “‘newsgathering’; and would, contrary to the

parameter of lawfulness mandated by Branzburg v.

Hayes, 408 U.S. 679 in such professional endeavor,

equate violation of the right of privacy by uninvited

intrusion into one’s home on a par with violation of

one’s private preference to be free from unwanted

publicity, as in simple “false light’ privacy cases,

involving no physical trespass into private residences or

premises. Moreover, the Court of Appeals wrongfully

assumed that petitioners’ right of redress in even a

simple “false light” invasion of their privacy by mere

publication would have been controlled by New York

Times yv. Sullivan, 375 U.S. 254, disregarding the

distinction’ between public officers, public figures and

private citizens not seeking a public forum or other

publicity; Elmer Gertz v. Robert Welch, Inc. _— US.

____ (decided June 25, 1974)

Perhaps the most devastating effect of the devision of

the appellate court is its declaration that the law must

give preference to publishers’ First Amendment rights

over the right of privacy of persons, declaring: ““When

an invasion of privacy involves publication, the First

Amendment must be considered and a mere balancing

of rights will not suffice. If there are preferred positions

among the rights guaranteed by the Bill of Rights,

certainly such priority attaches to freedom of speech

and the press rather than to the less explicit and less

well defined right of privacy”. (page 9 of its official

opinion)

ae PRE FW MTS ie PF PINES BCG, SS A a EIT

Neither the Constitution nor the Bill of Rights

guarantee the right to life or define pursuit of

happiness. Does such’ omission mean that henceforth

personal freedom does not include such rights? Or must

life or personal choice of occupation give way to

privileged professions named in the Bill of Rights? Can

a reporter kill to obtain news, since the Bill of Rights

omits reference to a person’s right to live?

Apparently the appellate court was unimpressed by

the opinion of the late Justice Louis D. Brandeis who

. declared: “The right to be let alone is the right most

. Valued by. civilized men’’, Olmstead v. U.S. 277 USS.

438; and the learned Court of Appeals overlooked or

misconstrued important guidelines laid down by the

Supreme Court which has repeatedly pointed out that

the entire Bill of Rights was to be judicially regarded as

a bulwark to protect rather than to diminish the right

of privacy.

“>. the First Amendment has a penumbra where

privacy is protected from governmental intrusion.

.... The right of ‘association’, like the right of belief

(West Virginia State Board of Education vy, Barnette,

319 U.S. 624, 63 S. Ct. 1178), is more than the right

to attend a meeting; it includes the right to. express

one’s attitudes or philosophies by membership in a

group or by affiliation with it or by other lawful

means. Association in that context is a form of

expression of opinion; and while it is not expressly

included in the First Amendment, its existence is

necessary in making the express guarantees fully

meaningful”. Griswold v. State of Connecticut, 381

U.S. 479, 85 S. Ct. 1678, 1681.

In Stanford v. State of Texas, 379 U.S. 476, 85 S.

Ct. 506, the Supreme Court had earlier pointed to the

“penumbral” guarantees of privacy implicit in the First,

Fourth and Fifth Amendments. These guarantees

include freedom of conscience and protection of human

dignity.

Il.

PRIVACY IS AS FUNDAMENTAL TO

FREEDOM AS A FREE PRESS

The right of privacy is of course the very bedrock of

personal liberty. While society is formed by men, a free

society is clearly formed for man.

“Man alone can freedom know;

by mem ’tis not possessed.

_Nor on man can men bestow

The instinct Which sets hearts aglow

and pulsing in each human breast.”

Life itself is quite personal; and in America at least,

freedom is its birthright.

Neither the law nor even the Constitution grant man

life or freedom: Their great function is to make secure

the natural treasures of life and freedom,

It is quite evident that without social order, defined -

by a Constitution and secured by law, that man’s

personal, natural rights, may easily be rendered

allegorical.

The agencies of government set up by Constitution

and laws are intended to assure man’s birthrights. The

judicial branch of government has often come to grips

with the apparent conflict between the natural rights of

}

man and those of the social order created to protect

them. Obviously, it is to man’s interest to maintain a

strong and effective society within the framework of its

Constitution and political laws; but the social strength

is to be directed against the erosive assaults which

intentionally or unintentionally weaken man’s natural

rights. For if the most perfect of governmental

structures were to become self-perpetuating and im-

pervious to man’s individual, personal rights and needs,

its reason for existence would have been forfeited.

Freedom of speech is_but one of aspects of

freedom of man. Freedom of «he ‘press was not

Constitutionally thought of in terms of modern

corporate, national and international commercial enter-

prises. When written into the Bill of Rights, it was to

protect man as a writer of his thoughts, his dreams, his

hopes, his aspirations or his criticisms, whether

acceptable or not to his government or to other free

men with like right of expression. The medium of such

expression, whether individually owned or the property

of impersonal commercial entities, relates rather to the

reading forum for the free expression § than

to the right thereof; therefore, the qualified privilege

claimed 4s defense by the corporate owners of the mass

media is valid only to the extent they do vicariously

become invested with the protected natural right of free

expression of the writer, and accommodate such free

expression. Moreover, the privilege that is enjoyed by

the publisher is prompted by the biblical admonishment

that “The Truth shall make you free’’; and not by any

exception to the basic personal right of the individual

to freedom. The interchange of ideas in man’s search

for Truth, is ideally to be encouraged by the privilege.

a ——

“The publisher of a newspaper has no_ special

immunity from the application of general laws. He has

no special privilege to invade the rights and liberties of

others”; Curtis Publishing Co. v. Butts, 388 U.S. 130,

87 S. Ct. 1975, 1989; Associated Press v. N.L.R.B., 301

U.S. 103, 132-133.

The currency of the Butts law is pertinent, because

it follows the landmark case of New York Times

Company v. Sullivan, 376 US. 254, 84 S. Ct. 710,

which seemed to project newspapers into the un-

touchable area of practising religions.

Having caught our wind, as we recovered from the

initial impact of Sullivan, we ‘find man still ensconced

securely in his heritage of freedom, with only the rights

of his public officers and of those who would influence

direction of public action redefined. By their very

nature, public officers are not private citizens treating

with private property by private means. And “public

figures” are persons who voluntarily surrender their

privacy to assume their roles in public domains. Ergo,

their right of privacy is surrendered by choice of an

alternative.

The Supreme Court reminds all in a_post-Sullivan

case that freedom of speech, the correlative of freedom

of the press, does not include the right to trespass on

the property of others, including the property of the -

public; Adderley v. State of Florida, 385 U.S. 39, 87 $.

Ct. 242.

Since Sullivan a number of other clarifying decisions

have reassured private citizens’ as to their right of

privacy, and to their historic property right in their

good names and reputations.

The late and revered Justice Michael Angelo

Musmanno, of the Pennsylvania Supreme Court in

Purcell v. Westinghouse Broadcasting Co., 191 A.2d

662, 411 Pa. 167, said:

“A man’s good name is as much his possession as

his physical property. It is more than property, it

is his guardian angel of safety and security, it is his

lifesaver in the sea of adversity, it is his parachute

when he falls out of the sky of good, fortune, it is

his plank of rescue in the quicksand: of personal

disaster’. > \

The Purcell decision also recalls with approbation —

the guidelines promulgated by Chief Justice Bell in the

case of Bogash vy. Elkins, 405 Pa. 437, 439:

“Freedom of speech is one of the most prized

rights of every American, but is not absolute

aes every citizen may freely speak, write and

print on any subject, being responsible for the

abuse of that liberty. Article I, sec. 7 of the

Constitution of Pennsylvania”.

The free press is intended to aid man in his

__judgments, his private determinations, opinions, shaping

of values and choices in self-satisfactions from the many

options open to his “pursuit of happiness” as well as to

help mold his thinking on public issues, events and

persons “ordering” or attempting to order his society.

Man’s right of privacy on the other hand is his right

to be let alone, and his right to live his life without

being subjected to unwarranted and undesired publicity;

his right to live without interference by the public; his

right to bar the idle, the curious, the scandalmongering,

the trespassers or others uninvited, be they individuals,

institutions or society itself, from his private life, love

a Mi Pee ne oe ee me di

a ——

;

and habits \asia private citizen and from his family and

home, so Jong as he and they do not become public

officers or public figures, and do not themselves seek

the publicity; Souder v. Pendleton Detectives, Inc., 88

So.2d 716; Aquino v. Bulletin Co., 190 Pa. Super. 528;

Appeal of Mack, 386 Pa. 251; Jenkins v. Dell Publishing

Co., 251 F.2d 447, 3 Cir.; Bennett v. Norban, 396 Pa.

151; Afro-American Publishing Co., Inc. v. Jaffee, 366

F.2d: 649.

IV.

RIGHTS OF PRIVACY ARE GUARANTEED

IN OHIO AND WEST VIRGINIA

A right of action for invasion of privacy has long

been recognized in Ohio; Housh v. Peth, 165 Ohio St.

35; Cordell v. Detective Publications, 419 F.2d 989

(6th Cir. 1969); Young v. That Was The Week That

Was, etc., 423 F.2d 265.

Likewise in West Virginia; Sutherland v. Kroger Co.,

144 W.Va. 673, 684, 685; 47 Am. Jur. Searches and

Seizures, 73; Roach v. Harper, 143 W.Va. 869; West

Virginia State Board Of Education y. Barnette, 319 US.

624; Copley v. Northwestern ‘Mut. Life Ins. Co., 295

F.S. 93.

Of course, the historic “recognition” of the rights of

' privacy by both States, would not, it is respectfully

submitted, give them power to abolish those rights of

individual citizens, in view of the Fourteenth Amend-

ment’s reach, imposing the mandate of the Constitu-

tion’s Bill of Rights upon all of the States; although the

Supreme Court, in Katz v. United States, 389 U.S. 347

said:

“What a person knowingly exposes to the public,

even in his own home or office, is not a subject of

constitutional protection...The protection’ of a

person’s general right to privacy—his right to be let

alone by other people—is, like the protection of

his property and of his very life, left largely to the

law of the individual states.”

V P

PUBLIC OFFICIAL, PUBLIC FIGURE, AND

PUBLIC INTEREST EXPANSIONS OF THE

SULLIVAN RULE HAVE NOT NEGATIVED

THE RIGHT OF PRIVACY

The United States Supreme Court, post-Sullivan, has

used these reassuring words with approval:

“Words defamatory of another are still placed in

the same class with use of explosives or the

keeping of dangerous animals; Prosser, Torts, par.

108, p. 792..... ei

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

Simultaneously with its reaffirmation of the fore-

going classic principle, in Butts, it reversed a large

defamation verdict won by retired General Walker, in

Walker v. Pulitzer Publ. Co., 388 U.S. 164, 87 S. Ct.

1996, by finding him to have been by his own choice a

“public figure” whose conduct invited the attention of

. news media, including possible incidental and unin-

tentional untruths in reporting of same.

After having warned publishers in Butts, that:

“Neither the interest of the Publisher nor those of

society necessarily preclude a damage award based

on improper conduct which creates a false

publication. .... and calculated falsehood places

the publisher at odds with the premises of

democratic government and with the orderly

manner in which economic, social or political

change is to be effected..... .

Butts, 87-S. Ct. 1990;

thus, emphasizing that CALCULATED FALSEHOOD is

still not privileged even as to a “public figure’’; nor is it

privileged as to public officials if published maliciously

(with the new, and not here pertinent definition of

~ malice, requiring “reckless disregard of the falsity”); yet

the high Court in Walker expanded the Sullivan

doctrine, into the hegamonies of as yet undefined

“public or social interest and activity”. Because General

Walker had “thrust himself into the vortex” of an

important public controversy, and “both commanded

sufficient continuing public interest. and had sufficient

actess to the means of counterargument to be able to

‘expose through discussion the falschood and fallacies’

of the defamatory statements, he was declared to have

purposefully assumed status as such a “public figure”

concerning whose activities and expressions on the

public issue, the people were entitled to be informed.

If, as he contended, he was defamed by untruths, he

could only complain in the civil courts if the untruths

were calculated and not error in fact or judgment, or if

they were published on improbable and not the usual,

reliable authority.

Apparently anticipating the query “When is a person

a public figure, so as to shed his birthright and

Constitutionally protected privacy?”, Chief Justice

Warren suggests the classification «include those who

“play an influential role in ordering society”, and who

become “intimately involved in the resolution of

important public questions or, by reason of their fame,

shape events in the area of concern to society at large’’;

87 S. Ct. 1996.

| Measured against these vague touchstones, plaintiffs

stand well out of the newly designated zone. None were

e ed in the resolution of any public question’; and

hone was famous in any field of endeavor where he or

she could or did “shape events. .. of concern to society

at large”; nor, indeed, did they play “an influential role

in ordering society”. Quite the contrary was true.

Certainly, it was never contended that any of the

Cantrell family surviving Melvin Aaron Cantrell were

public officials.

It was the lot of the Cantrell family to live in the

. unhurried, uncrowded, off-beat community of Gallipolis

Ferry, in the foothills of West Virginia, completely

private, completely contented, completely out of the

searching cameras, spotlights and curious eyes of the

reporters for news media, until the bridge disaster made

the crushed remains of Melvin Aaron Cantrell a “matter

of public interest”, really “hot news’. That was in

December, 1967.

The uninvited, arrogant invasion of the Cantrell

home, several months later, the Unforgivable trespass

upon the unsuspecting children, and the distorted, false

and sensationalized publication exposing them to

- ridicule has no justification whatever in law. The United

States Circuit Court of Appeals, for the Ninth Circuit in

the case of Dietemann wD. Time, Inc., 449 F.2d 245

declares:

;

“Investigative reporting is an ancient art; its

successful practice long antecedes the invention of

miniature cameras and electronic devices. The First

Amendment has never been construed to accord

newsmen immunity from torts or crimes commit-

ted during the course of newsgathering. The First

_ Amendment is not a license to trespass, to steal, or

to intrude by electronic means into the precincts

of another’s home or office. It does not become

such a license simply because the person subjected

4 to. the intrusion is reasonably suspected of

committing a crime.

Defendant relies upon the line of cases com,

mencing with New York Times Co. ». Sullivan

(1964) 376 U.S. 254, 84 S.Ct. 710, II L. Ed. 2d

686 and extending through Rosenbloom v. Metro-

media, Inc. (1971). 403 U.S. 29, 91 S, Ct. 1811,

29 L. Ed. 2d 296 (1971) to sustain its contentions

that (1) publication of news, however tortiously

gathered, insulates defendant from liability for the

antecedent tort, and (2) even if it is not thus

shielded from liability, those cases prevent con-

sideration of publication as an element in © -

computing damages.

As we previously observed, publication is not an —

essential element of plaintiffs cause of action.

Moreover, it is not the foundation for the

invocation of a privilege. Privilege concepts de-

veloped in defamation cases and to some extent in

privacy actions in which publication is an essential

component are not relevant in determining liability

for intrusive conduct antedating publication. (Cf.

Nimmer, “The Right to Speak from Time to Time:

First Amendment Theory Applied to Libel and

Misapplied to Privacy” (1968) 56 Calif, L. Rev.

-_ 935, 957). Nothing in New York Times or its

progeny suggests anything to the contrary. Indeed,

a EE

the Court strongly indicates that there is no First

‘Amendment interest in protecting news media

from calculated misdeeds. (E.g., Time, Inc. v. Hill,

supra, 385 U.S. at 389-390 and 384 n.9.)

No interest protected by the First Amendment is

adversely affected by permitting’ damages for

intrusion to be enhanced by the fact of later

publication of the information that the publisher

improperly acquired. Assessing damages for the

additional emotional distress suffered by a plaintiff

when the wrongfully acquired data are purveyed to

the multitude chills intrusive acts. It does not chill

freedom of expression guaranteed by the First

Amendment. A _ rule forbidding the use of

publication as an ingredient of damages would

deny to the injured plaintiff recovery for real harm

done to him without any countervailing benefit to

the legitimate interest of the public being.

informed. The same rule would encourage conduct

by news media that grossly offends ordinary men.”

In Varnish v. Best Medium Publ. Co., Inc., 405 F.2d

608, the defendant published an article in a March,

1964 weekly relating to a tragedy occurring in

September, 1963, when the plaintiffs young wife killed

her three infants aiid committed suicide. The article

portrayed the suicidal wife as having been regarded in

\ the community as the “happiest mother”, whereas in

fact she had been moody, dejected and depressed for

some time. A suicide note which revealed her true state

‘ of mind was reported in the article in such manner as

to omit reference to her despondency, in apparent

- design to depict the wife victim only as the “happiest

mother”. This distortion of fact made the story false.

The article being “knowingly false” to the publisher

was held to warrant a jury verdict based on invasion of

the husband’s privacy, resulting in a compensatory and

punitive damage verdict. In sustaining the verdict, the

Second Circuit Court of Appeals observed that the

murder-suicide occurring six months prior to the

publication was a matter of public interest, nevertheless,

because the plaintiff pointed out that the article

contained fictionalized dialogue attributed to him upon

discovery of the tragedy and did not accurately report

the condition of mind of the despondent wife, the jury

was warranted in finding the article “offensive to

persons of ordinary sensibilities” and that the plaintiff's

burden under New York Times v. Sullivan, 376 US.

254 to prove “intention or reckless falsity and

offensiveness to persons of ordinary sensibilities” which

“represent a proper balancing of the public interest in

freedom of expression and the individual interest in

privacy”, had been met.

PUBLIC INTEREST

The Supreme Court in Time, Inc. v. Hill, 385 U.S.

374 held that the opening of a new play (although the

play was based on an incident which occurred some

three years prior to the article reporting the play’s

opening) was a matter of public interest, quoting,

(p.388) from its own opinion in Winters v. People of —

State of New York, 333 U.S. 507, 510: “The line

between the informing and the entertaining is too

elusive for the protection of * * * (freedom of the

press)”, and remanding the case for determination as to

whether errors of fact relating to the subject matter

background of the play were “reckless falsity”. While

; TREC TNR CITT RY A IES RRO

. ae

the opening of a new play was the proper subject for,a

- publication in the public interest, reportorial expansion

of the fact of that event into the crime of three years

prior thereto, containing error, put the publisher to the

test of the New York Times y. Sullivan rule. It is to be

noted, therefore, that public interest does not of itself

cloak the publisher with immunity from liability for

invasion of privacy in the unauthorized publication of

an article and photographs relating to a person actually

involved in an ‘antecedent crime, which at the time of

occurrence was unquestionably “hot news” and, as

such, a proper subject of public interest in which area

the free press has its widest latitude.

In Time, Inc. v. Ragano, 427 F.2d 219, the main

article was concerned with organized crime, admittedly

a subject of public interest; however, a photograph of

the lawyer plaintiff (known to the publisher) in a group

of figures and identified as criminals, was held to assert

a proper cause of action for libel.

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

the plaintiff hotel had been the. headquarters of a golf

classic and therefore part of a matter of public interest,

so as to require “reckless falsity” proof as part of

plaintiff's libel case.

In Wasserman v. Time, Inc., 424 F.2d 920 cert. den.

90 S.Ct. 1844, the District of Columbia Circuit

reversed the District Court’s summary judgment for the

publisher and remanded for trial a libel action based on

publication of a group photograph of persons called

before a grand jury and who had. themselves been

released on $100,000 bonds, but which group included

the plaintiff attorney, known as such to the> publisher.

Again the subject matter was obviously one of public °

“J

interest, and the publication of a “reckless falsity” was

a question of fact for the jury. ;

In Sellers v. Time, Inc., 423 F.2d 887, cert. den. 91

S. Ct. 27 it was held that an article based upon filing of . °

a lawsuit, was of public interest so that accurate

reporting thereon constituted a complete defense to a

libel action, based on Pennsylvania law, without

reference to the right of either party under the

Constitution. ere ana

In Rosenbloom v. Metromedia, Inc., 415 F.2d 892,

cert. granted 397 U.S. 904, 403 U.S. 29 a libel verdict

of $25,000.00 compensatory and $750,000.00 punitive

(reduced) was returned in favor of a distributor of

magazines and against a broadcasting company on the

basis of a series of broadcasts in which repeated

reference was made to “smut merchants”. The Third

Circuit Court of Appeals, accepting the District Court’s

conclusion that “certain of the statements in the two

series were defamatory as a matter of Pennsylvania law

and, in the circumstances created a jury issue under

such law”, reversed on the ground that the evidence

lacked proof of “reckless falsity” or malice, saying:

“Not only did the broadcasts under attack concern

subject matter of public interest, but of equal

significance they involved broadcasts of “hot news”

items, i.e., summaries of the latest news given on the -

hour and the half hour in reports ranging from ninety

seconds to ten minutes”. The broadcasts dealt with

current police raids; and the second series dealt with

institution and development of a legal action by: the

plaintiff and two publishers of the news media (all

major local newspapers and the local CBS-TV affiliate)

EERE RNR SET HONS Ny

i =e

os is

as well as against the City of Philadelphia, its Police

Commissioner, and its district attorney.

In Time, Inc. v. McLaney, 495 F.2d 565, cert. den.

395 U.S. 922, the Fifth Circuit Court of Appeals after

granting of the interlocutory appeal entered summary

judgment which had been denied by the District Court,

where the plaintiff, a reported organized gambling

figure and operator, connected with an international

crime syndicate, was assertedly involved in an election

in the Bahamas where, inter alia, the operation was

taking place. The Court of Appeals held as a matter of

law that the subject matter was of public interest,

concerning a public figure and that the “reckless

falsity” or malice requirements of the New York Times

v, Sullivan case applied.

The subject matter of public health was held to be a

public interest in United Medical Laboratories vy.

Columbia Broadcasting Sys., 404 F.2d 706, cert. den.

397 U.S. 904 so as also to necessitate proof of

“‘reckless falsity” or malice in publication.

It is thus ee that the areas of public interest

include “hot news”, opening of a play, organized crime,

filing of litigation, political matters, and public health.

Certainly there are many other areas which can

properly be brought into the public interest, so as to be

outside the realm of privacy; however, within its

protected circle, all who venture — must do so

at their peril.

“That which is interesting to the public may not

always be in the public interest”; Johnston v. Time,

Inc., 321 F.S. 837, 853.

_ —

Query .... were the children and home of Margaret

Mae Cantrell in August, 1968, outside the protected

circle?

VI.

THE CANTRELL RIGHTS OF PRIVACY

WERE NOT WAIVED IN FACT OR LAW.

The expanded First Amendment rights of publishers

under the Sullivan et seq., doctrine give them no license’

to trespass and, without invitation, to intrude into the

effects and premises of even public figures to obtain

even truthful facts of public interest; Dieteman v. Time,

_Inc., supra; and knowing, false reporting or fictionali-

zing of facts rélated to a matter of even public interest

vitiates the qualified privileges of publishers, so as to

warrant both compensatory and punitive damages for

affected family members of deceased persons whose

circumstances of death constituted “hot news” in the

relatively recent but not current past, Varnish v. Best

Medium Publ. Co., supra.

A fortiori, where the uninvited trespass and intrusion

is into the home of a non-public family member, and

the resulting unprivileged publication is false, fictional-

ized and defamatory, are both compensatory and even

punitive damages warranted; for TRESPASS IS NEVER

PRIVILEGED, A LIE IS NEVER PRIVILEGED AND

PUBLICATION OF EVEN TRUTH OBTAINED BY

TRESPASS INTO PRIVATE PREMISES CONSTI-

TUTES UNLAWFUL INVASION OF PRIVACY, in

such circumstances.

— ay

Just as the thief cannot claim legal title to that

which he steals, so an intruding and trespassing reporter

can get no title or right, in the private matters of

another; ergo, he cannot“pass on any better right to his

publisher. In Afro-American Publishing Co. v. Eli Jaffee,

etc., 366 F.2d 649, 654, the D.C. Court of Appeals

states that for invasion of privacy: “An action is

maintainable even when all the statements made therein

are completely true and accurate.... The right of

privacy stands on high ground, cognate to the values

and concerns protected by constitutional guarantees”;

Cooley, Torts (2d ed.); Interference with Privacy,

Restatement, Torts, sec. 867; Barber v. Time, Inc., 348

Mo. 1199; Prosser, Torts, (3rd ed.) sec. 112; Tehan y.

United States ex rel. Shott, 382 U.S. 406.

The private problems of the Cantrell family,

including the dirty face of two-year-old Bruiser, were

their private rights just as much protected from

uninvited exposure by the Fourth Amendment and by

the law of privacy as were their private likes and their

private thoughts and values. No constitutional power to

condemn those rights in the “public interest” were

_ granted to the press by the First Amendment.

Constitutional guarantees.of freedom of press are

still, primarily for the benefit of citizens generally, and

not for the benefit of the press; in that such freedom is

necessary to assure to the citizens continuity of an

open society; Time, Inc., v. Hill, 385 U.S. 374; 87

S. Ct. 543.

Human dignity and conscience have their right to

grow in whatever social soil they take root—even in the

backward foothills of the mountain area of Gallipolis

Ferry, West Virginia; Stanford v. State of Texas, 379

U.S. 476; and the public may not intrude through its

highest officials; Watkins v. United States, 354 U.S.

178; no agency or group within the public, therefore

can claim a greater right than the federal government

itself, to represent such “public interest” as would in

effect repeal the Fourth Amendment.

Vil.

TIME, INC. v. HILL, 385 U.S. 374 IS ONLY

PARTIALLY APPLICABLE

The appellants’ brief, accompanying its post-trial

motions below, acknowledged that: “The court correc-

tly charged the jury on the test of Time, Inc. v. Hill.”

The admitted “occasion” for the Hill publication was

not one that was created or fabricated by Time, Inc. or

its reportorial staff; it was the opening of a new play

on Broadway, and as such was newsworthy and of

legitimate public interest. The complaint of the Hill

family relied-on their asserted civil rights under a New

York statute hereunder referred to. The article was in

nowise defamatory to the Hill family; contrariwise, it

ascribed to them heroic acts and qualities not warranted

by the facts. The historic, newsworthy event which

projected the Hills into the area of public interest had,

together with similar true experiences of others,

inspired the playwrite to dramatize and embellish the

situations into an intensely fictionalized theme in-

corporating non-factual elements of violence, lust and

heroics first depicted in.a best-seller book. That such.

“poetic license” is a legitimate attribute of creative

writers cannot be questioned.

The convicts who had restrained’ the Hill family in

their home, were depicted as cruel, lustful and mean,

contrary to the facts in the actual Hill experience; and

these elements of untruths, in no way reflecting

adversely on the Hills, were the sole basis for charging

falsity in reporting by Time, Inc.

Actually, were the Hills not “‘protected”’ by a statute

of New York State requiring their consent in the use

of their names, the case should have been dismissed as

failing to establish an action for invasion of privacy. It

was not dismissed, however.

_ The sole basis of the Hill suit against Time, Inc., was

that under a New York Civil Rights statute, forbidding

unauthorized commercial use of names or photographs

-of actual persons without their consent, their names

were used in a “fictionalized” story of their experience

without their consent. Aside from its title, the statute

makes no reference whatever to the “right of privacy”:

_ and it is particularly significant that, although urged by

_ Time, Inc., so to do, the Supreme Court refused io

hold the statute unconstitutional, saying (385 U/S.

396): !

“The appellant argues that the statute should be

declared unconstitutional on its face if construed

by the New York .courts to impose liability

without proof of knowing or reckless falsity. Such

a declaration would not be warranted even if it

were entirely clear that this had previously been

the view of the New York courts. The New York

Court of Appeals, as the Spahn opinion demon-

strates, had been assiduous in construing the

statute to avoid invasion of the constitutional

protections of speech and press. We, therefore,

confidently. expect that the New York. courts will

—_

apply the statute consistently with the consti-

tution:.) command. Any possible difference with us

as to the thrust of the constitutional command is

narrowly limited in this case to the failure of the

trial judge to instruct the jury that a verdict of

liability could be predicated only on a finding of

knowing or reckless falsity in the publication of

the Life article.”

The text of the statute is reprinted as a footnote in

the case. It is herewith reproduced for the purpose of

comments thereon which will follow. The complete text

of the New York Civil Rights Law Par. 50-5] is as

follows:

Par. 50. Right of Pryvacy

“A person, firm or corporation that uses for

advertising purposes, or for the purposes of trade, ,

the name, portrait or picture of any living person

without having first obtained the written consent

of such petson, orif a minor of his or her parent

or guardian, is guilty of a misdemeanor.”

Par. 51. Action for injunction and for damages

“Any person whose name, portrait or picture is

used within this state for advertising purposes of

trade without written consent first obtained as

above provided, may maintain as equitable action

in the supreme court of this state against the

person, firm or corporation so using his name,

portrait or picture, to prevent and restrain the use

thereof; and may also sue and recover damages for

any injuries sustained by reason of such use, and if

the defendant shall have knowingly used. such

person’s name portrait or picture in such manner

as is forbidden or declared to be unlawful by the

last section, the jury in its discretion, may award’

exemplary damages. But nothing contained in this

act shall be so construed as to prevent any person,

firm or corporation, practicing the profession of

photography, from exhibiting in or about his

establishment specimens of the work™~ of such

establishment, unless the same is continued by

such person, firm or corporation after written

notice objecting thereto has been given by the person

portrayed; and nothing contained in this act

shall be so construed as to prevent any person,

firm or corporation from using the name, portrait

or picture of any manufacturer or dealer in

connection with the goods, wares and merchandise

manufactured, produced or dealt in by him which

he has sold or disposed of with such name,

portrait or picture used in connection therewith;

or from using the name, portrait or picture

of any author, composer or artist in connection

with his literary, musical or artistic productions

which he has sold or disposed of with such name,

portrait or picture used in connection therewith.”

Obviously, the New York statute deals solely with

the unauthorized use of an actual person’s name or

photograph in advertisements or “for the purposes of

trade’. Notably, the Supreme Court observes that:

... “the statute gives him a right of action when his

name, picture or portrait is the subject of a ‘fictitious’

report or article.”(p. 384); nor does the Supreme Court

find fault with permitting recovery under the statute

providing that the trial judge properly charge the jury

that: “... a verdict of liability could be predicated only

on a finding of knowing or reckless falsity in the

publication of the Life article.” (p. 397)

To summarize Time, Inc. v. Hill, therefore, it appears

that:

1. The right to privacy is recognized as a funda-

mental, personal, constitutionally protected privilege of

man in our so-called free society.

2. The right to privacy includes personal auth rity

over one’s name or likeness sg as to require his consent

to publication thereof in any article not “hot news” or

relating, his involvement in a matter of “public interest”

or “public concern’’; however,

3. Even if the article involves a matter of “public

interest” (such as the opening of a new play) WHERE

IT CONTAINS UNTRUTHS WHICH ARE FICTITIOUS

BUT NOT DEFAMATORY, if published without his

consent and knowingly or with reckless disregard of the

truth or falsity thereof, the person named, or portrayed

(THOUGH HE WAS HISTORICALLY PROJECTED

INTO AN AREA OF PUBLIC INTEREST SO AS TO

THEN MAKE HIM. AN INVOLUNTARY PUBLIC

FIGURE) may recover damages from the publisher.

The present case is, of course, similar to Time, Inc. v.

Hill ONLY in that: .

1. The article complained of contained untruths.

2. The article complained of was published without

consent, containing the. names (and herein also

likeness of plaintiffs family and home at their very

worst.)

The present case is unlike Time, Inc., v. Hill in that:

1. Defendants actually INTRUDED into the Cantrell

premises to take the photographs of plaintiffs infant

children and of her home, without the invitation,

knowledge or consent of plaintiff.

at ee

: 44

2. Defendant’s fictionalized article, containing the

names and photographs of plaintiff's children and her

home, was HUMILIATING AND DEFAMATORY IN

BOTH WRITING AND PICTURES, resulting in their

extended emotional hurt and distress.

3. None of the children or the Cantrell home were

historically in the news.

4. The occasion of publication was NOT RELATED

TO A CURRENT, NEWSWORTHY EVENT, such as the:

opening of a play.

-The Supreme Court remanded in Time, Inc. y. Hill

because the District Court erred in giving its charge.

Counsel for respondents herein was gracious enough

to observe that such error is absent in the within

record.

It is respectfully submitted that under the charge of

the District Court, the jury was more than warranted in

finding that the defendant’s intrusive invasion into the

family privacy of Margret Mae Cantrell was reckless,

and that the publication in its “hillbilly” theme

containing distortions and untruths, was either agreed

upon in advance by the editors, or at the very least was

ratified and approved with reckless disregard as to the

truth of the contents, only its attractiveness thereof as

a “feature story” for its readers being the concern of

the Sunday editor.

““Recklessness is an inference of fact to be drawn

from the evidence offered, and is a matter for the

determination of the jury,...”; 76 C.J.S. Reckless,

Recklessly, Recklessness, p. 68.

Recklessness need not involve wanton or willful

conduct; Russell v. Turner, 148 F.2d 562, 565; McCoy

__ — ~

y. Faulkenberg, 53 Ohio App. 98; White v. Hall, 118

W.Va. 85.

In note 7, page 383 of Hill, the toons Court

pointedly observes that even though the publication’s

truth concerning a newsworthy.event may be a defense

under the New York statute as interpreted’ by the

Supreme Court of Appeals of that State, nevertheless:

“7 This limitation to newsworthy persons and

events does not of course foreclose an interpreta-

tion of the statute to allow damages where

“revelations may be so imitmate and so un-

warranted in view of the victim’s position as to

outrage the community’s notions of decency.”

Sidis v. F-R Pub. Corp., 113 F2d 806, 909

(C.A.2d Cir.) cert. denied, 311 U.S. 711 61 S.Ct.

393, 85 L.Ed. 462 (1940).. Cf. Garner v. Triangle

Pubis., Inc., 97 F.Supp. 546,- 550

(S.C.S.D.N.Y.1951); res Restatement, Torts, par.

867 comment d (1939). See Id.,illust. 6. This case

presents no question whether truthful publication

of such matter could be constitutionally pro-

scribed.”

The jury was, of course, warranted in the within case

in finding that the publication, added to and resulting

from, the intrusive invasion of the Cantrell family

privacy did indeed “outrage the community’s notions of

decency”; as witness the articles printed in the other

newspapers expressing the community’s outrage. (Plain-

tiffs Exhibit 7, App. Il, p. 11)

The subliminal thinking of the Justices of the

Supreme Court in Time v. Hill may well have been

revealed in its instructive note 7, supra, setting forth a

series of federal and state cases dealing with liability

aspects in privacy cases. Where the “invasion” com-

plained of is only by unauthorized use of a non-public

i iicaencionenss

PF ELODIE GAG js e chet

figure’s likeness or name, it appears that the test of

liability is whether the occasion, event or subject matter

legitimately “‘concerns” the public. If legitimate public )

concern is lacking, even though completely true, the

person named has a cause of action. The Supreme

Court refers to Afro-American Publishing Company vy.

Jaffe, 366 F2d 649, wherein the Circuit Court of

Appeals for the District of Columbia has (p. 653)

alluded to the Restatement of Torts, par. 867 which

holds that a person “who unreasonably and seriously

interferes with another’s interest in not having his

affairs known to others” is liable for invasion of the

offended person’s privacy. The Circuit Court further

held that “An action is maintainable even when all

statements made are completely true and accurate ....

The right of privacy stands on high ground, cognate to

the values and concerns protected by Constitutional

guarantees”, citing Tehan v. United States ex rel. Shott,

382 U.S. 406, 416 wherein the Supreme Court pointed

out that both the Fourth and Fifth Amendments are

concerned with “constitutional values... reflecting the

concern of our society for the right of each individual

to be let alone.”’. .. and commenting that: “The Court

also spoke in terms of ‘the Constitution’s concern for

the essential values represented by aur respect for the

inviolability of the human personality and of the right

of each individual “‘to a private enclave where he may

lead a private life”’. a

The District of Columbia Circuit Court cited “other

references to the existence and importance of a zone of

privacy established by constitutional guarantees” as

Mapp v. Ohio, 367 U.S. 643; Griswold v. Connecticut,

_———

381 U.S. 479; DeGregory v. Attorney General of State

of New Hampshire 383 U.S. 825.

in Mapp, supra, a criminal conviction was reversed

because the evidence was obtained by police officers in

private premises without a lawful warrant. 7

In DeGregory, the Supreme Court cited its holdings

in Watkins v. United States, 354 U.S. 178, 197 in the

following:

“The First Amendment may be invoked against

infringement of the protected freedoms by law or

by law making ... . Investigation is a part of

lawmaking and the First Amendment, as well as

the Fifth, stands as a barrier to state intrusion of

privacy ....There is no showing of “overriding and

compelling state interest.” ....that would warrant

intrusion into the realm of political and associa-

tional privacy protected by the Fifth Amend-

ment”.

It is respectfully submitted, therefore, that the

Supreme Court’s footnoted reference embodied in note

7 in Time, Inc. v. Hill are intended as a reaffirmation of

‘its strong advocacy of and protective interest in the

right of privacy, with its “protected freedoms”

indigenous to America; and in the evolving body of

legal principals dealing with the equally sacred and

protected freedom of man.to utter and print his

thoughts, since New York Times v. Sullivan, the High

Court has no intention of undermining or weakening

the foundation on which individual freedom must be

built, one’s right to be a truly “private citizen”, unless

history, circumstance, uncontrolled events or personal

choice project him into the realm of legitimate public

interest or concern.

SOS RRC RET

ae a ETE : eens ,

. Oe eee ae Te RN oR as ea a 5

, :

Moreover, the Supreme Court in Time, Inc. v. Hill

didnot do what the defendant here suggests; ice.,

disregard a proper jury verdict on a proper charge. )

The First Amendment’s guarantee of-a free press is

not intended for newspapers and magazines alone, of

course, but is one of the fundamental rights of freemen

as individuals; yet, where such right was used by

obtrusive mail peddlers of erotic literature, without

permission of the addressees, the Supreme Court, in

the recent decision of Rowan y. United States Post

Office, 38 U.S.L.W. 4343, unanimously upheld a statute

authorizing such addressees to require that their names

be omitted from the lists of the publishers. The

Supreme Court held that the individual’s right “to be

let alone” completely outwieghs the mass-mailer’s right

to communicate.

VIII.

THE CRITICAL ISSUES OF TRUTH,

OFFENSIVENESS, INTRUSIVENESS AND

RECKLESSNESS ARE MATTERS FOR

JURY DETERMINATION

Consent is a question of fact for the Jury’s

consideration. Schneckloth v. Bustamonte, 93 S.Ct.

2041. The jury here specifically found there was no

consent to either the uninvited trespass or the

publication.

Tbe American Law Institute’s Section 652D of its

new provision for the invasion of privacy in Restate-

ment (Second) of Torts, deals, inter alia, with

“Publicity Given to Private Life”, quoting as follows:

_—

“One who gives publicity to matters concerning

the private life of another, of a kind highly

offensive to a reasonable man, is subject to

liability to the other for invasion of his privacy.”

Tent. Draft No. 10 to 13, p. 113

To illustrate the principle, the following example is

given:

“*A’ publishes a book describing the life and

peoples of a backwoods community. In this book

‘A’ portrays in detail the conduct and character of

‘B’, a woman living in the community and

identified her by name. The book reveals intimate

details as to ‘B’s peculiar appearance... (etc.) to

which the ordinary reasonable woman would

strongly object to having made public. “A’ has

invaded the privacy of ‘B’.”” Comment D, Illustra-

tion 11, p.115

Dean Prosser’s example of what could constitute a

cause of action, classically describes the Cantrell case.

Moreover, his use of the term “highly offensive to a

reasonable man” necessarily implies that, under proper

charge of the Court, the fact finder must weigh the

evidence on the issue of offensiveness.

Webster’s unabridged, Twentieth Century Dictionary

defines “news” as “recent happenings”; and “news-

worthy” as “having the quality of news’. Further, the

word “happening” is defined as “something that

happens”; and “happen” as “to occur or befall by

chance or without plan”. Under these definitions, the

Cantrell story was not concerned with ‘“*news’, and was

therefore not “‘newsworthy”,gso as to come within any

of the areas of qualified privilege suggested by the

astute counsel for the respondents.

a eR aaa

PELL BE DEEN SPATTER ES

The testimony clearly established that the very

concept of the offensive story was the suggestion of :

Eszterhas to his then doting editors; and the promi- }

nence (largest single article) in the defendant’s Sunday

feature magazine without even checking the Plain

Dealer’s ‘“‘morgue”’ files for accuracy, was evidence that

the only “happening” was the story itself, a well-

planned and substantially fictional creation. ;

From the “Hill Folk” reference in the morgue file’s

burial account shortly after the tragedy, to the ‘“‘We’re

hillbillies” subtitle under the photograph of William

David Cantrell and his sister, in the 1968 feature article,

Eszterhas. characterized the Cantrells as backwoods,

uncultured, preternatural human freaks who, in their

withdrawn and limited development epitomized a

community of freaks, bereft of human sensitivities and

love — indeed “‘little to live for’. ,

Apparently not satisfied with the factual accounts

contained in the news stories of the disaster, and

seeking a “more interesting” angle as fhe basis for his

undertaking for profit, Eszterhas decided to “drop in”

on the unsuspecting Cantrell family; and he struck what

for him amounted to a bonanza. Mother Cantrell was

4 away, so his invasion was uninhibited. The camera eye

| >, of the Plain Dealer’s feature pages was filled with the

unprepared and uncombed scenes of the private family;

and personal details theretofore hidden in the Gallipolis

Ferry hills, and protected from exposure only by the v4

Cantrell’s right to be “let alone’ were published in

about half a million Sunday Plain Dealers. With such

evidence, the jury was amply fortified in its finding that

the invasion was a complete trespass, and_ the |

Sy ee a ent ta

publication of the camera’s ill-gotten products a very

reckless act indeed.

In Time, Inc. v. Ragano 427 F2d 219, 221, the

article complained of was a bona fide news story, but

the Fifth Circuit Court of Appeals affirmed the District

Court for the Middle District of Florida in denying the

publisher’s motion for summary judgement on lack of

evidence of malice saying:

“The record, which consists ofaffidavits, exhibits

and depositions, shows that all of the Time staff

knew that Ragano was an attorney from the “bio”

files Time Inc., had on him.” ... “In view of the

principle that all inferences to be drawn from the

rt facts must be viewed in the light most

favorable to the party opposing the motion for

summary judgment, e.g., United States v. Diebold,

Inc., 1962, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d

176; Gross v. Southern Ry. Co., 5 Cir. 1969, 414

F.2d 292, and in light of the fact that all the

Time, Inc., employees knew that Ragano was an

attorney, we think that a genuine issue of material

fact exists as to whether Time’ usion that

Ragano could journalistically be referred to as a

top Cosa Nostra hoodlum was made in good faith

or with malice. Therefore, summary judgment was

denied. Fed. R. Civ. p.56”

The foregoing decisions are in accord with the case

y of Blount v. T.D. Publishing Corp., 423 F.2d 421 (N.M.

1967).

In that case the Court held:

“Where the individual’s right of privacy is

concerned and where the right of the public to be

informed is involved, the question of fact should

be resolved by the trier of the facts.” (p. 424)

a PAMELA A

IX.

THE VERDICT WAS NOT EXCESSIVE

Respondent’s frank and uncompromising statement of

accord with the charge based upon Time, Inc. v. Hill,

suggests that the case be also a proper guide as to the

measure of damages herein. A

Although the Hiils, made heroes in the article and in

nowise defamed, asked , compensatory and , Punitive

damages only because they did not consent to the use

of their names; the verdict for the husband was

$50,000 compensatory and $25,000 in _ punitive

damages: The wife received a verdict of $75,000

compensatory and $25,000 in punitive damages. The

Cantrells by comparison were awarded only $45,000

and $15,000 each as compensatory damages, despite the

trespass into their home, the extensive feature publica-

tion and the distress and humiliation caused thereby.

Obviously the plaintiffs were entitled by the Seventh

Amendment to the Constitution to a jury trial; and the

appellant’s real complaint was with the jury’s verdict.

This in itself is no ground for either n.o.v. or for a new

trial; Simler v. Conner, 372 U.S. 221; Meeker vy.

Ambassador Oil Corp., 375 U.S. 160; Fitzgerald vy.

United States Line Co., 374 U.S. 16; Beacon Theaters,

Inc. v. Westover, 359 U.S. 500; Dick v. New York Life

Ins. Co., 359 U.S. 437. .

It is exclusively within the province of the jury as

_ the fact finder to determine all of the issues which were

submissible and upon which testimony was offered.

Even were the Court to believe that evidence as to any

of the factual issues was weak or slight, it would still lie

— —

within the jury’s exclusive province to judge, to accept

or to reject such evidence; Basham V. P.R.R. 372 US.

699: Rogers v. Missouri-Pacific Railroad, 352 U.S. 500;

Lavender v. Kurn, 327 U.S. 645; Gallick v.. Baltimore &

Ohio Railroad, 372 U.S. 108; the Seventh Amendment

to the Constitution.

The strong mandate of the United States Supreme

Court, as gleaned from its decision, which defines

federal . policy on questions of fact and credibility,

leaves little discretion for a trial “judge in this area,

holding that such evidence must be submitted to the

jury. Judge Friendly, in an opinion for the Second

Circuit Court of Appeals in| the case of Herman

Schwabe, Inc. v. United Shoe‘ Mach. Corp. 297 F2d

906, 912, cert. den. 369 U.S. 865 (1962) said:

“There is no bright line that divides evidence

worthy of consideration by a jury, although

subject to a heavy counter-attack, from evidence

that is not. Especially because of the guarantee of

the Seventh Amendment, a federal court must be

exceedingly careful not to set the threshold of the

jury room to high.”

Moreover, proof of special damages is not required

where even a technical trespass is involved in obtaining

information breaching privacy; Dietemann v. Time, Inc.

449 F2d 245, 247; Roach v. Harper, 143 W.Va. 869;

Pearson v. Dodd, 410 F2d 701,- cert. den. 395 US.

947.

— ao FRO LIEEED PERCE GE DERG:

54 i

. X.

CONCLUSION

Wherefore, it is respectfully submitted that the

Cantrell family, being neither public officials nor public

figures, and their home and family life being exclusively

their private property and rights, the physical intrusion

into their home by the publisher’s reporter and

photographer constituted such trespass as to foreclose

respondent’s First Amendment rights to photograph and

thereafter to publish even a true account of the facts;

and that their false and fictionalized publication,

stripped by the trespass of the protection of any

privilege, under the circumstances, warranted the verdict

and judgment of substantial damages. Accordingly, it is

respectfully urged that the judgment of the United

States Court of Appeals for the Sixth Circuit be here

reversed and the judgment of the District Court

reinstated.

Respectfully submitted,

HARRY ALAN SHERMAN, ESQ.

1709 Blvd. of the Allies

Pittsburgh, Pa. 15219

(412) 471-7777

Attorney for plaintiffs — appellees

OF COUNSEL:

_ Austin T. Klein

CERTIFICATE OF SERVICE

I hereby certify that I have“mailed: a copy of the

within brief to Smith Warder, Esq., attorney to for the

respondents, to his office, 1144 Unioir Commerce Bldg.,

Cleveland, Ohio 44115, by direct mail, postage prepaid,

this 25th day of July, 1974.

Harry Alan Sherman

Attorney for plaintiffs

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.