Appellees Brief — Cox Broadcasting Corp. v. Cohn

INDEX

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE ..................... ]

ARGUMENT: —

I. Introduction and Summary ................. 3

II. This Court Does Not Have Juris-

diction To Hear This Appeal ................ 4

III. Constitutional Considerations: °

A. Invasion of Privacy AsA_ -

Pe WE ee es i eee: 9

B. The First Amendment Does Not

Protect The Publication of the

Name of the Victim of a Rape ............ 12

1. The Social Interest in

Prohibiting Publication ,

of the Name of the Victim

of a Rape Justified the

Enactment of Ga. Code

Ann. § 26-9901 and

the decision of the

Georgia Supreme Court ............. 13

2. Publication of the Name

of the Victim of a Rape

has No Social Utility and

Is Not a Matter in Which

the Public Has a Legitimate

WE 5 oe a ee 18

Page

3. Appellee’s Privacy Is Protect-

ed by tthe First Amendment ..........22

CPAP. Sic bw ORC wend np Kew eee Ke 26

TABLE OF AUTHORITIES

Cases

Alexander v. Louisiana, 405 U.S. 625 (1972) ........... 6

Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d

EEE es Gs PS ee es Be ee pees ee 13

Rreard v. Alexandria, 341 U.S. at 642 .............. i2

B1..-0e v. Reader’s Digest Assn., 4 Cal. 3d

5.9%, 483 P.2d 34, 93 Cal. Rptr. 866

Oe ee oe eK ea eae wh eee

Construction & General Laborers’ Union v. Curry,

BER Cae PE TOE oes Ck os lb wale wee ee 7,8

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

es pe POSE en ae eis ke Se ie

Department of Banking v. Pink, 317 U.S. 264,

UE 0 Eo ia BRA eR ee Eee ee 7

Gill v. Curtis Pub. Co., 38 Cal. 2d 273, 239

ee a a as ne be a eee 29

Gill v. Hearst Pub. Co., 40 Cal. 2d 224, 258 _ -

a a ce hk os MG Ks ke 29

Gospel Army v. Los Angeles, 331-U.S. 543 (1946) ..... 7,8

Griswold v. Connecticut, 381 U.S. 479 (1965) ....... 11,23

Hudson Distributors v. L:li Lilly, 377 U.S. 386, 397 ...... 8

Kois v. Wisconsin, 408 U.S. 229 (1972) ..:.......... 19

Rian ¥. Ce, 367 TS. O60 C196!) og ce ee eo 1]

Meetze v. Associated Press, 230 S.C. 390, 95 S.E.2d

Ns es ig a bas ou ee 19

Miler v. Caliiornia, 413.075. 15:€1973) 2. 6 oe rica i

Montgomery Bldg. & Constr. Trades Council v. Ledbetter

Erection Co., 344 U.S. 176.( 1952)... ..6.... 7a oe

Mourning v. Family Publications Service. Inc.,

93 S.C. 1652 (1973)

Page

NAACP v. Alabama, ex rel. Patterson, 357 U.S. 449

CSS acc c cede henks 641 Pees es cia bewi as 1]

Nappier v. Jefferson Standard Life Insurance Co., 322

oe ee oe 8 8) ee ere aren 18,19

New York Times Co. v. Sullivan, 376 U.S. 254(1964) . . 12,22,23

Pavesich v. New England Life Ins. Co., 122 Ga. 190,

Ser a Oe CAD bos ee we SS Re ak da ees 9,10,11

Pope v. Atlantic C.L.R. Co. 345 U.S. 379 (1953) ........ 8

Radio Station WOW v. Johnson, 326 U.S. 120 (1945)... 6,8

Red Lion Broadcasting Co. v. F.C.C., 395

i See CIE cas ok CNG eee s COR ERT eS 4,19

Republic Natural Gas v. Oklahoma, 334 U.S.

EAU POED fads Ree es OW Se pe eee 6 oe ces 8

Rosenbloom v. Metromedia, 403 U.S. 29

Led) PRCT oT eae er ee eee Nigh stapes

Sniadach v. Family Finance Corp. of Bay Vie

See ae ee SOE cs Oks bk eee eee ees 5

Stanley v. Georgia, 399 U.S. 557 (1969) ........... ae

State v. Evjue, 253 Wisc. 146, 33 N.W.

De CSS i ee Oe aes wae os 17,20

Thorpe v. Housing Authority of City of Durham,

Sar We ee COPED ne a ce eee ee as ee

Time, Inc. v. Hill, 385 U.S. 374 (1967) ........ 12,24,27,29

Wolf V. Caineatie, 330. 0.8. 25 fies) oc ots hee wees 1]

Constitutional Provisions and Statutes

Constitution of the United States

First Amendment ....... 3,4,5,12,20,22,23,25 ,27,28,29

Powustbomts Ameen nn.) sc sss He 5s th oe es 5

Ga, Cote ARG, Sees 6h cs cee bee hee he ee ees 21

Ge. Code AM: Break aw see Se ie a 3,5,13

(sa; Come BG: eer ns ss en oo oe es Ma ee 12

Ga. Code Amis. © iS-7UM4) oi 5 svc 0 5 ov avin eee 12

Florida Statutes, Section 801.14... 2.0 oe eee 21

Virgin Islands Code, Title 5, Section 25H ............ 21

Article 6.0 Chapter 2, General Regulations of the

New York City Police Department .............. 17

iv

Page

Article 6, Code of Ethics or Canons of Journalism,

American Society of Newspaper Editors .......... 19

Oe Sh ee UG Wh OS eae bw ew he's 4,5,26

Oe io hk we % 6 a Wh als DA Ee 6

40 J. of the Kan. Bar Assoc. 313, 314 (1971) .......... 9

56 Cal; 2. Be BAS UI) i kk ee ec hk ‘ieee 20

Gi €uk. £: Rev; Soe CIS Ta) ik ow ve ewe ce os 13,14,15

Texts & Treatises

Amir, Patterns in Forcible Rape, Univ. of Chi.

a es os we a sh ek ae 14

Bureau of Criminal Statistics, Cal. State Dept. of

Justice, Crime and Delinquency in California,

ae REET: 6 vk ee ie ee Oak ERK E OD 15

. Comment, Forcible and Statutory Rape, An Exploaration

of the Operation and Objectives of the Consent

Bee, GE Te bas Fe OP OPO ED hiv oe whe to 8 ey 15

Clinch & Schurr, Rape, Washingtonian (June 8, 1973)... .14

Criminology and Police Science, 63 Journal of

NN ee Rs go ne oo ok as 8 16

Emerson, T., The System of Freedom of

WI © Doo os ok bk a oe oe ee ws Ba

Federal Bureau of Investigation, Uniform Crime Reports

ge og Rg ht ie ee ce rarer 13,14

Federal Bureau of Investigation, Uniform Crime Reports

Sot Ge Us BU Cie) bens wk te st ee ee 14

Friendly and Goldfarb, Crime and Publicity, the

Impact of News on the Administration of

Justice, The Twentieth Century Fund,

OE FED og ik os hw a ee be ke vie ae 8 es 17

Geis, Identifying Delinquents in the Press, Federal

Probation, Vol. XXIX, No. 4, Dec., 1965 ......... 18

Geis, Publicity and Juvenile Court Proceedings, 30

Rocky Mountain L. Rev. 101 (1958) ............ 18

MacDonald, Rape Offenders and Their Victims, Springfield,

., Coen © TR I el oe es 15

.

inne etnies

Page

Meiklejohn, A., Political Freedom (1960) ............ 27

Privacy in the First Amendment, 82 Yale L.J. 1462

b 2 | Tien eh En as aaa oe Swe ws 22,24

Restatement (second) of Torts (Tent. Draft No. 13,

a BOE ko 5 ck SA a A eo 9,18,27

Schiff, Medical Aspects of Human Sexuality, May, 1972

a a a es ee eee a we 13

Sexual Assault on Women and Children in the District of

Columbia, 83 A.M.A.J. 1021 (Vol. 12), :

SN Ae kb a ew oo aca. os Bee ee a Oe o's wee 14

Sexual Assault on Women and Children in the District of

Columbia, Southern Medical Journal

Pen OE ss i a oo vee Ae we oe Deeks 14

The Free-ness of Free Speech, 15 Vanderbilt L. Rev. 1073

SO Re sevens ev Bae aw Pa Weve ane 12

Warren & Brandeis, 4 Harv. L. Rev. 193 (1890) ...... 10,11

\

\

| IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

NO. 73-938

COX BROADCASTING CORPORATION AND

THOMAS WASSELL,

Appellants,

v.

/

MARTIN COHN, ;

Appellee.

ON APPEAL FROM THE

SUPREME COURT OF GEORGIA

¢

APPELLEE’S BRIEF

STATEMENT OF THE CASE

Appellee agrees substantially with Appellants’ statement

of the case, but believes that certain additional facts. should

| be added to put the issues in proper perspective.

; «

; J

_ The death of Appellee Martin Cohn’s daughter led, some

six months later, to the indictment of six young men for rape

and murder (A. 19). The case became the object of the most

intense publicity in which nuinerous charges were made (A.

30, 33). So heated was the publicity that Appellee found it

necessary to remove his children from school and send his

family out of town and was almost unable to continue his

regular business activities (A. 31). Due to this publicity and to

‘the facts which were being related by the ptess concerning the

victim (Appellee’s daughter) and the conduct of the

defendants, a Fulton County Superior Court Judge issued an

order restraining counsel for the State and the defense from

tmhaking any statements to the press; however, news coverage

of the case continued unabated (A. 34). t ae

On April 10, 1972, the murder charges were dismissed by

the State and five of the six defendants pleaded guilty to rape

or attempted rape (A. 35). The sixth defendant pleaded not

guilty and his case was set for trial (A. 35). That same

evening and in the early hours of the following day during

two newscasts over Appellants’ local television station, the

happenings in Court were related, including the identification

by name of Appellee’s, daughter as the victim of the multiple

rapes (A. 35). Because of these broadcasts, the successful

prosecution of the remaining case was impeded, as Appellee

was torn between seeking justice for his daughter and the

well-being of his family (A. 15). Appellee’s fear of future use

of his and/or his daughter’s name in fact led to a disposition

of the case by a plea to attempted rape, rather than by a trial

(A. 36).

ARGUMENT

INTRODUCTION AND SUMMARY

By its ruling, the Supreme Court of Georgia has held that

a civil action for invasion of privacy lies upon proof that

Appellants publically disclosed the name or identity, of the

victim of a rape with willful or negligent disregard for the fact

that reasonable men would find the invasion highly offensive.

The Court further held that a 1968 Georgia criminal statute

(Ga. Code Ann. § 26-9901)', which prohibits the public

dissemination of the name or identity of the victim of a rape

or attempted rape through the mass media, is a legislative

determination that such disclosure is not a matter of public

interest or general concern in Georgia. The right to disclose

the. identity does not rise to the level of First Amendment

protection.”

1 Ga. Code Ann. § 26-9901: “It shall be unlawful for

any news media or any other person to print and publish,

broadcast, televise, or disseminate through any other medium

of public dissemination or cause to be printed and published,

broadcast, televised, or disseminated in any newspaper,

magazine, periodical or other publication published in this

State or through any radio or television broadcast originating

in the State the name or identity of any female who may

have been raped or upon whom an assault with intent to

commit rape may have been made. Any person or corporation

violating the provisions of this section shall, upon conviction,

be punished as for a misdemeanor.”

2 Appendix to Jurisdictional Statement, A-9-21, A-24-26.

4

“A majority of this Court does not consider this

statute to be in conflict with the First Amendment.

We think the General Assembly of Georgia had a

perfect right to declare that the victim of such a

crime should not be publicly identified by the news

media. The First Amendment is not absolute; and

consider this statute to be a legitimate limitation, on

the right of freedom of expression contained in ‘the

First Amendment.”

For reasons elaborated herein, Appellee does not believe,

in the first instance, that this Court should grant jurisdiction

as the judgment of the Supreme Court of Georgia lacks the

requisite finality as mandated by 28 U.S.C. § 1257. On the

merits of the case itself, Appellee contends that, in viewing

the conflicting social and constitutional values in issue, the

actual raison d'etre for the First Amendment as articulated

by this Court* is wholly inapplicable because the First

Amendment interest in public knowledge of the Specific

identity of a rape victim does not exist, or is of so little

importance that the social and First Amendment interest in

privacy is overwhelming in.comparison.

Il.

.

THIS COURT DOES NOT HAVE JURISDICTION

TO HEAR THIS APPEAL.

In the decision below, the Supreme Court of Georgia,

pursuant to motions for summary judgment filed by both

3 Appendix to Jurisdictional Statement, A-25.

“ E.G., Red Lion Brvadcasting Co. v. F.C.C., 395 U.S.

367 (1969) and Rosenbloom v. Metromedia, 403 U.S. 29

(1971)

5

parties, ruled, in effect, that Appellee’s complaint stated a

cause of action for invasion of privacy that was not barred by

the First Amendment’, also ruling that Ga. Code Ann.

§26-9901° was a constitutional exercise of legislative power

that declared that the public dissemination of the specific

identity of the victim of a rape was not a matter of legitimate

public concern in Georgia, and thereby not protected by the

First. and Fourteenth Amendments.’ The Court reversed

Plaintiff-Appellee’s motion for summary judgment on liability,

which had been granted by the trial court, affirmed the

lower court’s denial of defendants-Appellant$’ motion for

summary judgment, and the case was remanded to the trial

court for a determination of the factual issues pf liability.* It

is submitted that this posture of the case does} not make it a

“final” judgment or decree in the sense required by 28 U.S.C.

§ 1257.

Before proceeding to an appropriate definition of

“finality”, certain of this Court’s pronouncements on its role

in the appellate system may help put the issues in perspective.

This Court does not, for example, sit as a super legislative

body and is not concerned with what philosophy a state

should or should not embrace.’ It is also not the function of

5 Appendix to Jurisdictional Statement, A-24,25.

© Appendix to Jurisdictional Statement, A-26.

7 Appendix to Jurisdictional Statement, A-26.

8 Appendix to Jurisdictional Statement, A-12,21.

® Sniadach v. Family Finance Corp. of Bay View, 395

U.S. 337 (1969).

———

6

this Court to speculate as to the wisdom of a statute, or

whether the evil sought to be remedied could have been

regulated in some other manner.'° Accordingly, this Court

will avoid decisions of constitutional issues unnecessary to the

decision of the case before it'! and will not decide abstract,

hypothetical, or contingent questions in advance of the

necessity for its decision'?. The citations of authority

sustaining the proposition that legislative acts are entitled to

great respect, deference and weight and will not be lightly set

aside are too numerous to mention here'?. When the power

‘of the legislature to enact a law is called into question, the

Court should proceed with great caution, and the power to

review itself should be exercised sparingly and only when

absolutely necessary when there is no other choice.!*

$

With that background in mind, the determination must be

made whether the decision of the Georgia Supreme Court

possessed sufficient attributes of finality to justify this Court’s

granting jurisdiction. The requirement of finality, so it has

been said, is not one of those technicalities to be easily

scorned'>, but there is little doubt that there is a tendency

10 Mourning v. Family Publications Service, Inc. 93 S. Ct.

1652 (1973).

11 Alexander v. Louisiana, 405 U.S. 625 (1972).

12 Thorpe v. Housing Authority of City of Durham, 393

U.S. 268 (1969)

13 See, 16 C.J.S. §98.

14 Id. §98.

15 Radio Station WOW v. Johnson, 326 U.S. 120 (1945);

Montgomery Bldg. & Constr. Trades Council v. Ledbetter

Erection Co., 344 U.S. 178 (1952)

on the part of this Court to give the concept of finality as

practical, as opposed to a technical, construction.’® This

tendency has not been greeted with unanimity, however,

witness a series of concurring and dissenting opinions by

Justice Harlan in which he charged this Court with straining

precedents to the breaking point.!7

Nonetheless, it is still true that only final judgments of

state courts may be appealed to this Court. For a judgment of

an appellate court to be final and reviewable for this purpose,

it must end the litigation by fully determining the right of the

parties, so that nothing remains to be done by the trial court

“except the ministerial act of entering the judgment which

the appellate courts directed.”!* Although the Court is not

restricted to the face of the judgment in determining finality,

the test appears to be whether the order of the appellate

court has in fact adjudicated the rights of the parties and that

such adjudication is not subject to further review by a state

court. In a remand for trial or new trial,.although the decision

of the appellate court is the law of the case upon the facts as

then presented that law must be applied by the trial court in

accordance with the evidence presented upon trial. “We

cannot assume that the Supreme Court of California would.

hold the ordinances in question constitutional no matter what

facts might’ be presented upon a second trial. Indeed,

16 Construction & General Laborers’ Union v. Curry, 371

U.S. 542 (1963)

17 Id., supra, at 542.

18 Gospel Army v. Los Angeles, 331 U.S. 543 (1946);

Department of Banking v. Pink, 317 U.S. 264, 267 (1946).

8

experience demonstrates that particularly in constitutional

cases’ issues turn on factual presentation.”!? Further, “to be

reviewed by this Court, a state court judgment must be final

as an effective determination of the litigation and not merely

interlocutory or intermediate steps therein. It must be the

final word of a final court.”?° And to allow review of an

intermediate adjudication would offend the decisive objection

to fragmentary reviews, the mischief of economic waste, and

of delayed justice.?!

The situation in Construction & General Laborers’ Union

v. Curry, supra, is clearly distinguishable from the instant case

and clarifies the principle involved. There, the specific

adjudication on a demurrer by the Georgia Supreme Court

finally adjudicated the whole case. There was nothing of

substance to. be decided in the trial court.2? Here, a great

deal remains to be litigated; above all, the liability of the

Appellants on the merits, in whose favor a decision in the

trial court would moot this case, rendering a decision by this

Court unnecessary. In Curry, the decision of the appellate

court in fact disposed of the case on the merits, and left to

the lower court the performance of ministerial acts only.

Decidedly, that is not the posture of this case and, for the |

19 Gospel Army v. Los Angeles, supra, at 548.

2° Hudson Distributors v. Eli Lilly, Harlan, J., dissenting,

377 U.S. 386, 397.

2! Radio Station WOW, Inc. v. Johnson, supra at 127;

Republic National Gas v. Oklahoma, 334 U.S. 62 (1948);

Pope v. Atlantic C.L.R. Co., 345 U.S. 379 (1953).

22 Construction & General Laborers’ Union v. Curry, .

supra at 551.

9

very powerful and cogent reasons enunciated by this Court

restricting itself to their view of “final” judgments, the Court

should dismiss this appeal for lack of jurisdiction.

Ill.

CONSTITUTIONAL CONSIDERATIONS

A. Invasion Of Privacy As A Recognized Tort.

It has become almost trite to say that an influential law

review article, written by Samuel D. Warren and Louis D.

Brandeis, articulated and gave birth to a new tort commonly

referred to an invasion of the right to privacy.?? The article

absorbed and crystallized all that had gone on before and

formulated with clarity the principle of the right to privacy.

Over the following years, some thirty-three (33) states

recognized the principle and the Restatement of the Law of

Torts treats the right as being established in our common

* law.?4 In the leading American case on the subject 75, the

Supreme Court of Georgia, through the eminent Justice Cobb,

stated:

“The right of privacy has its foundation in the

instincts of nature. It is recognized intuitively,

consciousness being the witness that can be called to

establish its existence. Any person whose intellect is

23 4 Harv. L. Rev. 193 (1890)

24 40 journal of the Kansas Bar Assoc. 313, 314 (1971).

25 Pavesich v. New Eng. Life Ins. Co., 122 Ga. 190, 50

S.E. 68 (1905).

10

in a normal condition recognizes at once that as to

each individual member of society there are matters

private and there are matters public so far as the

individual is concerned. Each _ individual as

instinctively resents any encroachment by the public

upon his rights which are of a private nature as he

does the withdrawal of those rights which are of a

public nature.”’?®

The Court further stated:

“The liberty of privacy exists, has been recognized by

the law, and is entitled to continual recognition. But

it must be kept within its proper limits, and in its

exercise must be made to accord with the rights of

those who have other liberties, as well as the rights of

any person who may be properly interested in the

matters which are claimed to be of purely private

concern. Publicity in many cases is absolutely

essential to the welfare of the public. Privacy in other

matters is not only essential to the welfare of the

individual, but also to the well-being of society.”?7

(Emphasis supplied.) "

Public disclosures of embarrassing private facts

about a person is, as has been said, the tort of the “yellow

journalist”, and very well may be what caused Warren and

Brandeis to write their article.2® It is also that aspect of the

tort with which we are dealing here.

: 26 Pavesich v. New Eng. Life Ins. Co., supra, 50 S.E. at

69.

27 Pavesich v. New Eng. Life Ins. Co., Supra, 50 S.E. at

¥3.

28 “The press is overstepping in every direction the

obvious bounds of propriety and decency. Gossip is no longer

the resource of the idle and of the vicious, but has become a

trade which is pursued with industry as well as effrontery.”

Warren & Brandeis, supra, N.4 at 196. 1

ila Se Loren]

The interest in privacy plays a number of distinct roles in

regulating the relationship between the individual and society.

In some instances, privacy is asserted as a restraint on

governmental intrusion. Therefore, sanctity of the home

underlies specific constitu.sonal prohibitions against

unreasonable searches and seizures?°, and respect for the

individual’s freedom of conscience has struck down

governmental inquiries into beliefs and associations.*°

Additionally, Griswold v. Connecticut?! . suggests that a right

of marital privacy may be inferred from the general libertarian

principles emanating from the Constitution itself.

The essential difference between the older actions for

defamation or trespass and an action grounded on privacy lies

in that true but indecent revelations did not come within the

civil libel cause of action. Warren and Brandeis proposed the

new tort in which truth would not be a defense*?. They

recognized, however, as did the Georgia Court in Pavesich,

that the right of privacy should not prohibit “‘any publication

of matter which is of public interest or general interest.”>>.

29 See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961); Wolf v.

Colorado, 338 U.S. 25, 27-28 (1949) bad

3° See, e.g., NAACP v. Alabama ex rel. Patterson, 357

U.S. 449, 462-63 (1958).

31 381 U.S. 479 (1965)

32 Warren & Brandeis, supra at 218.

33 Warren & Brandeis, supra at 214.

12

Growing out of that formulation, it has been recognized|

that a broad “newsworthy” privilege exists; ‘the factual ’~

reporting in any news medium of current news in which the

public has a legitimate interest is protected.** This has been

recognized by statute in Georgia®*, but in light of the

decision of the Georgia Supreme Court in this case, the

statutory privilege was impliedly held not applicable. It would

seem evident, therefore, that the instant case must turn on

whether the specific identifigation of the victim of a rape by

the news media is a matter of legitimate public interest and

thereby protected by the First Amendment.

B. The First ‘Amendment Does Not Protect The

Publication Of The Name Of The Victim Of A Rape.

At the outset, Appellee believes that a factual decision

must be made as to whether the identification of the victim

of rape is “newsworthy.” If the mere fact of publication in

the news media was accepted ipso facto as sufficient to show

the existence of public interest, then the ietion would

consume the rule and would also presume an abst lutist view

of the First Amendment that has never been enunciated by

this Court.2® Assuming a non-absolutist view of the First

34 See, e.g., Rosenbloom v. Metromedia, 403 U.S. 29

(1971); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967);

Time, Inc. v. Hill, 385 U.S. 374 (1967); New York Times Co.

v. Sullivan, 376 U.S. 254 (1964).

35 Ga. Code § 105-704 and Ga. Code § 105-709(4).

36 See, The Free-ness of Free Speech, 15 Vanderbilt L.

Rev. 1073 (1962); Miller v. California, 413 U.S. 15, 23

(1973); Breard v. Alexandria, 341 U.S. at 642.

13

Amendment, the right to privacy asserted by Appellee must

be determined by balancing the competing and conflicting

social interests. As succinctly stated in Barber v. Time,

Inc.,*7, the right of privacy is not inconsistent with freedom

_ of expression, but only limits its abuse. The difficulty lies in

determining when legitimate public curiosity becomes

unscrupulous and unwarranted and, as will be discussed, what

happens when there is an enormously important social value

in preserving the specific privacy under discussion.

The Social Interest in Prohibiting Publication Of the

Name of The Victim Of A Rape Justified The

Enactment Of Ga. Code Ann. §26-9901 And the

Decision Of the Georgia Supreme Court.

“Rape is a form of brutality and an invasion of privacy

that few victims can ever forget.”3* The increase in the

number of rapes in this Nation defies description. From 1960

to 1969, reported rapes increased at roughly the same rate

as other crimes,?° but in 1969, the rape rate surged ahead of

other crimes against the person of an individual, and in two

37 348 Mo. 1199, 159 S.W. 2d 294-44942).——

38 Arthur Frederick Schiff, M.D., Deputy Medical

Examiner, Dade County, Florida, Medical Aspects of Human

Sexuality, May, 1972.

39 61 Cal. L. Rev. 920 (1973); Federal Bureau of

Investigation, Uniform Crime Reports for the United States

61 (1971)

14

of the three following years, it increased markedly.*° During

the first six months of 1972, the crime of rape increased by

fourteen per cent as opposed to a decrease or slight increase

in other crimes against the person or property.*' All the

evidence available seems to indicate, as an index to the

dimensions of the problem, that at a maximum, only twenty

per cent of all forcible rapes are ever reported.*? The reasons

why victims fail to report a rape are varied, but high on the

list would seem to be the desire by parents, the victim, ana

others, to prevent attention, publicity, further ordeal and

emotional injury by investigation and appearance in court.*?

Unfortunately, there is a paucity of studies on rape. There is

also little doubt that the problem is not only increasing, but

that the present system for dealing with it is unacceptable to

the victims.4* That women are aggressively attacking. the

notion that “it’s a man’s world” needs no citation of

4° Id. at 920, FBI, Uniform Crime Reporting 1 (Jan. -

Jun. 1972) eon

| *! FBI, Uniform Crime Reporting 1 (Jan. - Jun. 1972)

42 61 Cal. L. Rev. 919, 921.

*3 See, e.g., Patterns in Forcible Rape, Univ. of Chi. Press

(1971); for some_insight into the problems in the District -of

Columbia relating to&the incidence of rape and its treatment

by the police and courts; See, RAPE, Clinch and Schurr,

Washingtonian, June 8, 1973; Sexual Assault on Women and

Girls in the District of. Columbia, Southern Medical Journal

October 1969, pp. 1227-1231; Sexual Assault on Women and

Children in the District of Columbia, 83 A.M.A. Journal 1021: .

(Vol. 12), Dec. 1968.

“4 See, RAPE, Clinch and Schurr, supra.

'

15

authority; and that the rape laws are not aimed at protecting

women from sexual assault, but rather, to protect male

interests is a truth revealed by analyses.4* The difficulty in

convicting those charged with rape is well known‘ ® and lies

in the structure of the rape laws which protects the

defendants more than the victim to a degree not found

elsewhere in criminal law*”. In short, available statistics show

that rape is a uniquely difficult social problem that is not

being solved.* ®

The precise percentage of victims who fail to report rape

because of fear of publicity is impossible to determine, but

“fear of publicity often discourages victims from appearing in

' court."*° This is directly related to the woman’s shame,

45 Comment, Forcible and Statutory Rape: An

Exploration of the Operation and Objectives of the Consent

Standard, 62 Yale L. J. 55, 172 (1952).

46 See, e.g., Bureau of Criminal Statistics, Cal. State

Dept. of Justice, Crime and Delinquency. in California 102

(1967), showing, inter alia, 14.2% acquittals, 9.2% dismissed,

54.2% convicted by guilty plea, 29.9% convicted by trial.

47 See, e.g., 61 Cal. L. Rev. 919 in which it is pointed

out that juries are told that a charge, of rape is easily made

and difficult to defend against; that the victim’s testimony

must be examined with caution; evidence of the “unchastity”

of the victim may discredit her testimony,etc.

4° Id. at p. 941.

49 MacDonald, Rape Offenders and | Their Victims,

Springfield, Ill., Charles C. Thomas (1971), pp. 94 and 95.°:

16.

which in the extreme may be so great that she does not

mention the rape to anyone at all,5° and is also the source of

why rape is a “heinous, but understudied offense”.5'! Female

victims of rape ordinarily do not wish to cooperate in studies —

of their own behavior, mainly because of the shame involved

in being a victim.5? ‘The issue of victim-precipitated rape (i.e.,

“she asked for it”)®? often is raised to make the issue

whether the victim seemed to consent, but retracted the

consent and was forced, or actually invited a sexual

relationship®*. In any event, reporting a rape has such

unpleasant ramifications for the victim — both because of her

reputation and the necessary caution of the police in

accepting those charges — that’ rapes too frequently go

unreported.55 The response, it is submitted, must not only be

legislative, judicial and attitude changes, but also to find a

way, consistent with the Constitution, to reduce the

reluctance of rape’ victims and/or their families to report the

crime and testify in court. That victims or their families are

justified in fearing widespread and sensationalized publicity,

considering the press’s penchant for dwelling on sex crimes, is

i

59 Id. p. 96.

' $1 63 Journal of Crim. Law, Criminology and Police

Science, No. 3 p. 402 (1972).

52 Id., p. 406.

53 Certainly relevant in this case. See Appellee’s Affidavit

in the Appendix at A-30-32.

$4 63 Journal of Crim. Law, supra, p. 406.

55 Id., p. 403.

~

,

17

hardly disputable.5® That the avoidance or reduction of

publicity will aid law enforcement is axiomatic because the

fear of publicity “Seriously interferes with effective law

enforcement. The evidence is that it does and the very statute

attacked. by Appellants is precisely one way of aiding the

prosecution of this specific crime.57 Judicial recognition of

this is found in State v. £vjue, 253 Wisc. 146 (1948), in

. which case the court said:

“It is considered that there is a minimum of social

value in the publication of the identity of a female in

connection with such an outrage. Certain it is that

the legislature could so find. At most the publication

_of the identity of the female ministers to a morbid

desire to connect the details of one of the most

detestable crimes known to the law with the identity

of the victim. When the situation of the. victim of the

bai - assault and the handicap prosecuting officers labor

under in such cases is weighed against the benefit of

publishing the identity of the victim in connection

with the details of the crime, there can be no doubt

5 See, Crime and Publicity, The Impact of News on the

Administration of Justice, Friendly and Goldfarb, the

Twentieth Century Fund, New York (1967), in whith the

authors debate the fair trial versus free press issue and the

pros and cons of delayed reporting. They also concluded that

American press coverage of crime news is often excessive and

offensive, pandering to the lowest taste and unnecessary even

for the most basic commercial reasons, at page 34.

57 See also, Section 6.0, Chapter 2, General Regulations

of the New York City Police Department, which provides that

representatives of the press may be advised of current news if

ps the ends of justice are not defeated, “...but under no

—_ circumstances will the identity of the following be revealed:

... 4. victims of a sex crime.”

18

that the slight restriction of the freedom of the press

prescribed by section 348.412 is fully justified.”

(Emphasis supplied.)

“ That “an enormously important social value may be

attained by aiding the enforcement of the laws against rape

through reducing the fear of publicity is therefore beyond

dispute. Whatever its benefits, press publicity in this narrow

area is no more desirable tham it is a “protection” to a

youthful offender being handled in the juvenile court.5® The

question remaining thusly is whether it is socially useful to

identify the victim of a rape.5?

|

*

It is on the resolution of this question, Appellee submits,

that the case turns.

f

~ rE

Publication Of The Name Of the Victim Of a Rape

Has No Social Utility And Is Not A Matter In Which

The Public Has A Legitimate Interest.°°

58 For a comparison, see Publicity and Juvenile Court

Proceedings by Gilbert Geis, 30 Rocky Mountain Law Review

101 (1958), and by the same authority Identifying

Delinquents in the Press, Federal Probation, Vol. XXIX, No,

4, December 1965, pp. 44-49.

59 See, Nappier v. Jefferson Standard Life Ins. Cc , 322

F.2d 502 (CA-4 1963), holding that a claim for invasion of

privacy was stated by a news broadcast identifying two rape

victims in violation of a state statute similar to the Georgia

statute in issue here.

®° Restatement (second) of Torts (Tent. Draft No. 13,

Apmil 27, 1967), p. 126, section 652F, states the privilege as

to matters of public interest in terms of matters in which the

public has a legitimate interest. This implies that the scope of

the privilege should be determined by the courts and not by

the press itself. In adjusting the conflict between the

individual desire for privacy and of the press to inform the

19

“A newspaper should not invade private rights or feelings

without sure warrant of public right as distinguished from

public curiosity.”®' What is true for the printed news media

is at least as pertinent to television and the quoted ethical

canon displays acknowledgement by a prestigious press

association that there is a distinction between matters about

which the public has a right to know, irrespective of

individual feelings, and an area in which, although the public -<-

might be interested, the press has a duty to refrain from

transgressing upon individual privacy. The issue is not whether

the public, or a segment thereof, is curious, or desires to

know something, but rather, whether the public has any

legitimate concern to justify the intrusion into a person’s

private life.°? To paraphyase the language of this Court in

Kois v. Wisconsin,®? , how is the name of the victim of a rape

rationally related to the news report of the event itself? For

ail the reasons usually ascribed to the rationale underlying

freedom of speech, i.e., “access to social, political, esthetic,

moral and other ideas and experiences’®* which citizens

require in order to perform self-governance,°* is not the

public, the courts must determine what are matters of

legitimate public interest. In this case, there is both a judicial

and legislative determination that identification of a rape

victim is not a matter of legitimate public interest.

1 Code of Ethics or Canons of Journalism, American

Society of Newspaper Editors, article 6.

&2 See, Meetze v. Associated Press, 230 S.C. 390, 95 S.E.

2d 606 (1956), for a definition of an actionable invasion of

the right to privacy, quoted with approval in Nappier v.

Jefferson Standard Life Ins., Co., supra.

63 408 U.S. 229 (1972).

6* Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367,

390 (1969).

65 Rosenbloom v. Metromedia, 403 U.S. 29, 41 (1971).

20

public’s interest in factual news reporting sufficiently served

by an account of the event itself without public identification

of the person victimized?®® It is submitted that Appellants

have not in any instance addressed themselves to this

question, but have rather cited at length cases which already

assumed the central question on which the case turns.

Appellee has no quarrel with the decisions of this Court

assuring that the First Amendment is not nibbled away and

concedes that were the public identification in the news

media of the name of the victim of a rape a legitimate matter

of public concern, then Appellee’s cause of action would fall

— statute or no statute. But no such legitimate public interest

has been or can be shown, nor has it been so articulated other

than in the very terms used by the Wisconsin Supreme Court

in Evjue, supra, i.e.,°*‘a morbid desire to connect the details

of one of the most detestable crimes known to the law with

the identity of the victim.”’ Appellants’ evident justification

for its publication does not grapple with the societal issues or

the balancing that is involved, nor does it articulate just how

the utterance involved is of public or general concern.®® Their

argument that since the name of the victim was contained in

the public record (i.e., indictment and docket), it was ipso

facto privileged again begs the essential question. Surely by

the fact that private citizens turn to the courts, voluntarily or,

as here, involuntarily, as the innocent victims of

circumstances, and that a judicial record of the transaction is.

made, does not sweep away their right to privacy through

®© See, 56 Cal. L. Rev. 935, 966-967 (1968).

©7 State v. Evjue, supra.

68 Rosenbloom v. Metromedia, supra.

© “ah . —

tiled SO Fes? SBOE Re

21

some sort of implied waiver theory! It should be sufficient to

3 say that the disclosure of the identity of the victim of rape

either is or is not a matter of public interest and general

concern in Georgia, aside from any so-called public record

privilege. It is obvious that the Georgia Supreme Court

thought the privilege of reporting judicial proceedings limited

by the statute prohibiting disclosure; a justification based

upon a public records theory ought similarly to be rejected by

this Court.£° The statute, in brief, aims at overpublication in

the media and not with court records that will, by themselves,

cause very limited publicity.

Taking into consideration all of the competing social

values, particularly the compelling one regarding effective law

enforcement and the fear by victims of publicity to an extent

unknown in the context of other offenses, and the tenuous

argument that can be made in favor of public disclosure, can

it really be said that the court or legislature was without

power to attain such a overridingly important goal?7°

®° Also, such a) postulate would imply that the media

could ramsack the courthouse files at random and select the

most sensational divorce cases and then titillate its readers

with all the details, including names, without regard to the

fact that the cases were.of no public interest, but were purely

private domestic disputes. Such a broad view of the privilege

would havé the“ gravest social implications. It would certainly

put an end to the right to privacy, at least for litigants.

7° Compare this with those jurisdictions in which the

legislature has decided that the rehabilitative goals of the

juvenile law are so important as to override the right of the

press to identify juvenile defendants (e.g., Virgin Islands Code,

Title 5, Section 2511, Fla. Statutes Section 801.14, Ga. Code

§ 24-2432).

:

- a :

; ie OE ELIE EES ORD

22

Appellee’s Privacy. Is Protected By The First

Amendment.

This Court has articulated a theory of the First

Amendment over the past decade that forms the basis of

constitutional arguments for and against the public disclosure

tort. Starting with New York Times Co. v. Suilivan,7' in

1964, the Court, in applying the free speech guarantee, has

emphasized the integral role of free speech in a democratic

system and has found a First Amendment interest in

protecting a “system of freedom of expression.” 7? In

deciding the constitutionality of a specific utterance, this

Court has considered the merits of the utterance and its place

in a constitutional system of free speech, reasoning that:

. free speech is protected not for some intrinsic

value of speech but because it is a mnecessary

condition for the making of informed decisions about

matters of government, decisions which all citizens in

a democracy are called on to make. Speech provides

information, the raw material from which citizens can

make self-governing choices.”’7?

But this Court, while doing much to ensure the free flow of

information from speaker to listener has not explicitly held

that there may be a powerful First Amendment interest in

protecting the privacy of the individual in certain cases, ie.,

71 376 U.S. 254 (1964).

72 See, T. Emerson, The System of Freedom of

Expression, p. 517 (1970), in regard to _ potential

unconstitutionality of the tort of public disclosure, a

potentiality with which Appellee does not concur.

73 Privacy in the First Amendment, 82 Yale L..J. 1462,

1464 (1973).

ve

PEPER

23

an individual’s ability to control information about himself so

that he may be free to make certain choices important to him

which, if disclosed, would impede or chill his right to think or

do unpopuiar things.7* The secret ballot, the right to possess

so-called obscene materials in the privacy of one’s home’5,

the right to marital privacy7® , and membership in

associations are examples of situations in which a citizen

ought to have the tight to privacy and be confident of its

protection. Therefore, the First Amendment has an interest in

protecting the privacy of the individual which is as necessary

to preserve a system of free expression as is the more

traditional concept of freedom of the press.

The Court has held that the First Amendment has an

interest in protecting published information, whether it be

opinion or fact??, whether the fact be true or false7®.

whether the subject of the information be public official or

private citizen?°, and Whether the subject be well-known or

obscure®®, if the information has First Amendment values,

ie., aids the citizen in making informed decisions. The

74 Id. pp. 1462 et seq.

75 Stanley v. Georgia, 399 U.S. 557 (1969).

76 Griswold v. Connecticut, 381 U.S. 479 (1965).

77 New York Times v. Sullivan, 376 U.S. 254, 271-273

(1964).

78 Id. p. 271-272.

79 Rosenbloom v. Metromedia, supra at 31-32.

80 Iq. at 31-32.

24

converse of this position is equally true — the revelation of

private facts have an inhibiting effect on the individual,

chilling or destroying hiis ability to make decisions.®!

In the instant case, in which Appellee’s privacy claim

faces the Appellants-pwblishers’ claim that the information

published is in the publiic interest and therefore privileged, the

competing interests arise from the same constitutional

provision with an impwrtant distinction that sets this case

apart from others. Not only was Appellee inhibited in making

decisions and choices tbecause of the invasion of his privacy;

the interference to this freedom seriously impeded the

prosecution of a brutal crime with social affects far more

adverse than that servedi by the publication. Furthermore, we

have here a legislative determination that oster.sibly decided

which interest outweigmed the other, ie., public disclosure of

the identity of a rape victim was vastly less important than

encouraging victims of rrape to report the crime and testify.

Is not the solution,, as suggested by highly persuasive note

in the Yale Law Journal ®?, to recognize that the invasion of

privacy consists not in disclosing the information itself, but in

linking the information to the individual in question, by name

or otherwise. As the Georgia Supreme Court cogently noted

in this case, “this statute does not prevent disclosure or

publication of the ‘evenit’; it merely prohibits the disclosure or

te See, 82 Yale IL. J. 1462 at 1468 and 1469 for the

applicability of this re:asoning to James Hill in Time, Inc. v.

Hill, 385 U.S. 374 (1967).

82 82 Yale L. J. 14462.

:

:

;

:

:

|

25

publication of the identity of the victim of the event.”®? in

short, the constitutional privilege to teli the public a piece of

news should be judged separately from the “constitutional”

privilege to tell the public who was involved. Presumptively,

commercial success ought to have nothing to do with the

privilege under discussion, though it is hardly a secret that the

media’s preoccupation with scandal and especially sex brings

financial success.** The trite but accurate saying that “names

are news” is underiable, but that is a commercial fact

unrelated to the constitutional decision at stake. Does the

name of a given person linked to some information have valve

to those who hear or read the resulting news items, in that

they will find it useful in arriving at the decisions of

self-government? Does whatever value the use of the name of

a rape victim might have®*> overwhelm the individual’s First

‘Amendment interest in privacy? Does not such a calculation,

not in the area of the event itself, but in the area of

identification, compel a conclusion that identification has a

terribly negative effect on our social system by deterring

83 Jurisdictional Statement, A-24.

84 See also, Briscoe v. Reader’s Digest Assn. 4 Cal. 3d

529, 483 P.2d 34, 93 Cal. Rptr. 866 (1971), in which, it was

held that if the Court decides the name is not “of legitimate

public interest,” the publisher has no defense of privilege and

the plaintiff's cause of action is good.

85 Appellee frankly states that he has never heard from

any source whatever a single logical reason suggested or

proposed as to a positive value that would be served by

publicly identifying the identity of the victim of a rape,

whoever she might be. All the results appear to be negative

and detrimental to the individual and society.

me See ‘ TABS N I ma LOWES SOPRA wit Te : Fn

26

victims and their families from reporting rapes, not to

mention to appalling embarrassment and humiliation caused

to these unfortunates through no fault of their own.

Appellee believes that a public disclosure tort action such

as this, dealing with the unauthorized use of names in a

context wherein BOTH individual and public interests

coincide in favor of privacy, must be sustained unless this

Court holds that the publication privilege obliterates any zone

of privacy.

CONCLUSION

For this Court to assume jurisdiction of this case in its

present posture, before a trial or adjudication of the merits,

would do violence to the letter and intent of 28 U.S.C.

§1257. It would needlessly have this Court review the

constitutionality of state legislation and a decision of the

highest court of a state without knowing, through a trial,

whether the facts of this case will even bring into play the

issues sought to be reviewed. Repeated decisions of this Court

point out the inappropriateness of deciding constitutional

issues except when necessary, and only upon a final judgment

or adjudication of the highest court of a state. Therefore, this

appeal should be dismissed.

Should this Court grant jurisdiction, however, the type of

invasion of privacy at issue concerns unreasonable put’ -city

given to one’s private life. This species of the tort isfnot

concerned with the truth or falsity of the material published,

but rather focuses on the publication of material concerning

an individual’s private life, which is highly offensive to the

at

reasonable man with ordinary sensibilities.®® Aside from the

postulated theory that there is a First Amendment interest in

privacy, the constitutional protection applies only, as this

Court explicitly held in Time, Inc. vy. Hill, 385 U.S. 374

(1967), to matters of public interest:

“We hold that the constitutional protections for free

speech and press preclude the application of the New

York statute to redress false reports of matters of

public interest in the absence of proof that the

defendant published the report with knowledge of its

falsity or in reckless disregard of the truth.”

And although there was an emphasis on falsehood germane to

‘a defamation case and irrelevant to a privacy case, the same

constitutional principles seem to apply to either tort. The

impact of the Hill decision, by its very terms, was expressly

limited to the sphere of publications in which the public has a

legitimate interest. The public interest test implies the

existence of a non-public interest zone, and the rationale of

this Court’s opinion in Hill indicates that the malice and

falsity tests would. not be there applicable. In this category

would be suits based on commercial exploitation or invoiving

unjustified revelations of embarrassing or offensive details of a

person’s life.2” Although the eminent writer Meiklejohn does

not balance individual interests against the First Amendment,

he does define speech as public or private.2® Once an

expression is found to have “governing importance”. it is

86 Restatement (second) of Torts. Section 652C.

commented at 115.

87 See, A. Meiklejohn. Political Freedom (1960).

8* Id.. at 56-57, 79.

28

protected; if not, presumably, actions for invasions of

privacy would be permitted when the public interest was not

involved.

Whichever theory is employed, “public interest in the

abstract” is not ordinarily a simple phrase to define, but if

ever a specific report rendered that definition less difficult,

this is such a case. That no precise definition can be made for

all cases-in which all courts can agree is clearly an acceptable

price to be paid for any approach to the First Amendment

which is not absolute. A case-by-case method is, after all, the

common law approach, typified by flexibility and abstention

from dogma. :

This case does not and should not have broad sweep, nor

does Appellee suggest a rule of constitutional law any broader

. than the facts presented herein. Based upon a balancing of the

interests theory, or on competing First Amendment interests,

the principles enunciated in this case should and must have

reference to the specific facts. Any other resolution could

have the severest negative effects; ie., an absolutist view .

vis-d-vis public disclosure will obliterate the individual interest

in privacy and the strong public interest in its affirmance in

this case with decidedly negative repercussions for law

enforcement; and a decision that sweeps too broadly in ‘the

other direction without regard to the facts could undoubtedly

give a green light to those who would like to stifle a free

press.

Appellee cannot urge too strongly his support for free

speech and press; but, at the risk of seeming redundant,

respectfully submits that the speech involved here simply does

not rise to the level that warrants First Amendment

protection. -

co tan

29

Acceptance of the right to privacy has grown with the

increasing capability of mass media and electronic devices to

destroy. an individual’s anonymity, intrude upon his most

intimate activities, and expose his most personal

characteristics to public scrutiny.*? Surely there is a line. an

outer limit, at which point the individual is. given

constitutional protection and justice.?®° To say otherwise

would be to say that “the First Amendment not only

precludes effective prosecution of the right of privacy,’?! but

also obliterates the at least equal public interest of the state

in securing adequate law enforcement.

Respectfully submitted,

STEPHEN A. LAND, Esquire

225 First National Bank Building

Decatur, Georgia, 30030

Attorney for Appellee

Martin Cohn

89 Briscoe v. Reader's Digest Assoc., supra: Gill v. Curtis

Pub. Co., 38 Cal. 2d 273, at 277-278, 239 P.2d 630: Gill v.

Hearst Pub. Co., 40 Cal. 2d 224, 228, 258 P.2d 441.

°° It is suggested that the usual role of the Press being

depicted as David doing battle with Goliath is not apposite in

this instance. The media have become very powerful indeed.

especially in those cities which. have but one newspaper or a

single television outlet and wherein the press as an institution

may be as powerful as government. Such power may not be

wholly beneficial as absolute power never is. The concern over

privacy is of intense current interest as witness proposals to

protect individual’s§ from prying computers. financial

institutions and even two-way cable television. as noted in an

address in June, 1974 by Vice President Gerald Ford to the |

Convention of the State Bar of Georgia in Savannah. See also. *

Alan F. Westin, Privacy and Freedom. Atheneum, New York.

1967.

°! Time v. Hill. supra, dissent of Justice Fortas.