Amicus Curiae Brief — Cox Broadcasting Corp. v. Cohn

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IN THE

—_— Court of the United States

October Tern: 1972

No. 73-938

COX BROADCASTING CORPORATION, et al.,

Appellants,

-Vs-

MARTIN COHN,

-

Appellee.

On Appeal from the Supreme Court of Georgia

BRIEF FOR THE STATE OF GEORGIA

AS AMICUS CURIAE

Artuur K. Botton

Attorney General

Rosert §S. Srusss, II

Executive Assistant

Attorney General

Don A. LANGHAM

Assistant Attorney General

Aurrep L. Evans, JR.

Assistant Attorney General

Please address all

communications to:

Aurrep L. Evans, JR.

Assistant Attorney General

132 State Judicial Building

i

ee eed

INDEX

INTEREST OF THE STATE OF GEORGIA...........

OPINION BELOW................000. eee

JURISDICTION ..............20000005 er. eee

. STATUTE AND CONSTITUTIONAL PROVISIONS

INVORVED 5c cscs cvs ps oeetsscsccass ee agggh censsses

QUESTIONS PRESENTED.......0......0.0.200000 005

STATEMENT. .... 00.00.0000. cc cece cee evee eee eee ees

ARGUMENT. ....... 20... eee cece eee eee e ees

1: This appeal does not fall within the purview of 28

U.S.C. § 1257 and consequently should be dismissed

for want of jurisdiction.....................2.0005- 5

(a) There is no final judgment............. 0.2.2... 5

(b) The State satite claimed to have been drawn

into question in this case is really only tangen-

tially involved and hence will not support an

appeal under 28 U.S.C. § 1257(2)............... 7

2. The right of privacy of a grieving father whose daugh-

ter died shortly following and possibly as a conse-

quence of being raped, as applied to his right not to

have his deceased daughter’s name publicized and

broadcast Ly the news media in connection with the

crime, need not and ought not_to be destroyed by

the First Amendment. ...................0..02005. 9

(a) The “right of privacy” is fundamental........... 9

(b) Freedom of Speech.................... 22.005. 15

(c) The balancing of the fundamental rights of “‘pri-

vacy” and “freedom of speech” in the present

|

TABLE OF AUTHORITIES

Page

Cases: :

Alexander v. Louisiana, 405 U.S. 625 (1972). ........0..... 7

Ashwander v. Tennessee Valley Authority,

297.U.S. 288 (1936). .............. wee eeneeuerevecues 7

Bazemore v. Savannah Hospital,

171 Ga. 257, 155 S.E. 194 (1930)............0..0...... 11

Board of Regents v. Roth, 408 U.S. 564 (1972).......: rae ae 13

Bolling v. Sharpe, 347 U.S. 497 Co) ee nr rere 13

Briscoe v. Reader’s Digest Association,

4 Cal.3d 529, 482 P.2d 34 (1971).........4.......... eee

Chaplinski v. New Hampshire,

315 U.S. 508 (1942)... 0... cee 17

Clark v. Holmes, 474 F.2d 928 (7th Cir.),

cert. denied, 411 U.S. 972 (1973)................:..20...16

Cox Broadcasting Corporation v. Cohn,

231 Ga. 60, 200 S.E.2d 127 (1973)............... 2, 6, 7,8

Davis v. General Finance & Thrift Corp.,

80 Ga. App. 708, 57 S.E.2d 225 (1950)................. 12.

Davis v. United States, 328 U.S. 582 (1946)............... 14

Garrity v. New Jersey, 385 U.S. 493 (1967).............2223 9

Gospel Army v. Los Angeles, 331 U.S. 543 (1947).......... 5

Griswold v. Connecticut, 381 U.S. 479 (1965)... 2. ...00.0... 14

Harris v. United States, 331 U.S. 145 (1947)... 2.2.0.0... 2, 14

a

In Re Gault, 387 U.S. 1 (1967)... 0... ee eee 22

Market Street Railway Co. v. Railroad Commission of

California, 324 U.S. 548 (1945)... 0.0 eee ee, 5

ii

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TABLE OF AUTHORITIES—continued

McDaniel:v. Atlanta Coca-Cola Bottling Company,

60 Ga. App. 92, 2 S.E.2d 810 (1939)................... 11

McDonald v. United States, 335 U.S. 451 (1948)... 0.0.0... 1.

Mills v. Alabama, 384,U.S. 214 (1966)................... 6

Nappier v. Jefferson Standard Life Ins. Co.,

322 F.2d 502 (4th Cir. 1963).............0......0-005. 21

New York Times Co. v. Sullivan, .

376 U.S. 254 (1064)... cc cede ccc cece Fie seccceca 15

Pavesich v. New England Life Insurance Co.,

122 Ga. 190, 50S.E. 68 (1905)..... 2,9, 10, 11, 12, 13, 18, 19

Pickering v. Board of Education of Township Highschool,

391 U.S. 563 (1968)... 2.00... ee ee eee eee 16, 17

Pittsburgh Press Co. v. Pittsburgh Commission on :

Human Relations, 413 U.S. 376 (1973)... .............. 20

Republic Natural Gas Co. v. Oklahoma,

334 U.S. G2 OGGB) «x << ciscees veces vewhenveuessnaedes 5

Rosenblatt v. Baer, 383 U.S. 75 (1966).........0. 00.00 16,17

Smith v. Doss, .

251 Ala. 250, 37 So.2d 118 (1948)... ..............000. 11

State v. Evjue,

253 Wisc. 143, 33 N.W.2d 305 (1948)............ 20, 21, 23

Time, Inc. v. Hill, 385 U.S. 374 (1967)................ 19

United States v. International Union United Automobile,

Aircraft and Agricultural Implement Workers of America,

B02 US. GG? (1008) ok 6 56 eee ee 0445504 foes een nee 7

iii

TNA AP OAS la RE oo Ne Ty EME NS Os OA EN he SAO LOBED ME AOR GT thei

TABLE OF AUTHORITIES—continued

Page

Constitutional Provisions: |

U. S. Const. Amend. I............. 0. ccc cece eee ences 3, 14

U.S. Const. Amend. IV....................22044. 4, 13, 14

U.S. Const. Amend. V................00..00 0002005 4,13

U. 8. Const. Amend. IX. ........... 6. ccc ccc cece eens 4,15

We CO; BN, oe cee ces ce esectaa pees 4,15

U.S. Const. Amend. XIV, Sec. I..................... 4,13

Georgia Const. (1945) Art. I, Sec. I, Par. II

(Ga. Code Ann. § 2-102)... 0... c cece ect eeecceee 16

Statutes:

BI TOM Gb.) Sanne. cere rere 2, 3, 5, 6, 7, 8, 9, 24

Ga. Laws 1968, pp. 1249, 1335 .

(Ga. Code Ann. § 26-9901).................2.. 3, 6, 7, 23

Ga. Laws 1971, pp. 709, 751 .

[Ga. Code Ann. § 24A-3503(g) J...................005. 21

Miscellaneous +”

~ 62 Am. Jur.2d, Privacy § 1 (1972)..............00 ee eee 1

62 Am. Jur.2d, Privacy § 13 (1972).................85. 12

Annot. Right of Privacy, 168 A.L.R. 446 (1944)........... 13

Brennan, The Supreme Court and the Mi klejohn

Interpretation of the First Amendment,

49 Harv. 1 (1005) ccc cctieveeserdeeninqsticier nest: 15

Green, Relational Interests,

29 Ill. L. Rev. 460 (1934). ......... eee ee eee eee 12

he 0 LOMB 0 Tm OP GA WEA aie FANE ORE tot

TABLE OF AUTHORITIES—continued

Page

Kennedy, The Right to Privacy in the Name, Reputation

and Personality of a Deceased relative,

40 Notre Dame Lawyer 324 (1965).................... 12

Leflar, The Free-ness of Free Speech,

15 Vand. L. Rev. 1073 (1962)................2.... 16, 18

Meiklejohn, The First Amendment is an Absolute,

‘Fhe Supreme Court Rev., p. 245 (1961)................ 15

Nizer, The Right of Privacy,

39 Mich. L. Rev. 526 (1941).................. sa geses 11

Pound, Interests of Personality,

28 Harv. L. Rev. 343 (1915)....................0.. 10, 11

Prosser, Privacy, 48 Cal. L.- Rev. 383 (1960)........... 11, 12

Wade, Defamation ard the Right to Privacy,

15 Vand. L. Rev. 1093 (1962). ...............0.0005. 12

Warren and Brandeis, The Right to Privacy,

4 Harv. L. Rev. 193 (1890)...............0.00.02000005 10

Note, Privacy in the First Amendment,

82 Yale L. J. 1462 (1973). .......... 6... cee eee ee ee 14, 19

Vv

ODER TRICE LIS SILT SITS A PLES LOLI IEE Bt RE BEEG OLE TIBET

IN THE

Supreme Court of the United States

October Term 1973

; No. 73-938

COX BROADCASTING CORPORATION, et al.,

. Appellants,

-vs-

MARTIN COHN,

Appellee.

~

On Appeal from the Supreme Court of Georgia

BRIEF FOR THE STATE OF GEORGIA

AS AMICUS CURIAE

INTEREST OF THE STATE OF GEORGIA

The “right of privacy” has been defined as:

“.,. the right to be free from the unwarranted appropri-

ation or exploitation of one’s personalty, the publicizing

of one’s private affairs with which the public has no legiti-

mate concern, or the wrongful intrusion into one’s private

activities, in such manner as to outrage or cause- mental

suffering, shame, or humiliation to a person of ordinary

sensibilities. The right of privacy has also been defined

as the right to be let alone, to be free from unwarranted

publicity, and to live without unwarranted interference

by the public in matters with which the public is not

necessarily concerned.” 62 Am. Jur. 2d, Privacy § 1 (1972).

This Court has referred to the “right of privacy” which the

citizens of this country enjoy as being “one of the unique

values of our civilization.”” See McDonald v. United States,

335 U.S. 451, 453 (1948). It has spoken of the right as being

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2

of “the very essence of constitutional iiberty,” declaring its

protection to be just as imperative as is the protection of those -

other rights we call ‘‘fundamentai.”’ See Harris v. United States,

331 U.S. 145, 150 (1947). Since the‘State of Georgia, through

Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50

S.E. 68 (1905), was the first American jurisdiction to recog-

nize the right as one for whose infringement the law will give

redress, it can come as no surprise that Georgia is in complete

accord with the high value which the Court has placed on this

personal freedom of our citizens. Having championed this pro-

tection of the individual citizen’s liberty and sensibility in the

past, Georgia desires to prevent its erosion in the present.

This is no less so simply because the attack upon this funda-

mental right is launched in the name of “freedom of the press’’

or “freedom of speech.’ It is in this light that we submit that

the State of Georgia has an interest in upholding the case and

statutory law it has developed in vindicating its citizens’ right

to privacy. This State law is under attack in the case at bar.

Additionally, the cuse at bar appears to place in issue a State

statute which not only protects the privacy of the individual,

but also serves the salutary public purpose of facilitating the

reporting and prosecution of one of mankind’- most loathsome

crimes—the crime of rape. For this reason too the State of

Georgia has a vital interest in this Court’s adjudication of the

case at bar.

OPINION BELOW

The opinion of the Supreme Court of Georgia is reported in

Cox Broadcasting Corporation v. Cohn, 231 Ga. 60, 200 S.E.2d

127 (1973). The additional written opinion of that court de-

nying Cox Breadcasting Corporation’s motion for rehearing

is set forth immediately following the initial decision. See 231

Ga. at pp. 68-69, 200 S.E.2d at pp. 133-134.

JURISDICTION

Appellants (Cox Broadcasting Corporation, et al.) have in-

voked this Court’s jurisdiction under 28 U.S.C. § 1257 on the

ground that it is an appeal from a final judgment of the Su-

, preme Court of Georgia in a case which has drawn mto ques-

te

ee see 2 . _ a ee

°

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tion the validity under the Constitution of the United States

of a State statute, to wit: Ga. Laws 1968, pp. 1249, 1335 (Ga.

Code Ann. § 26-9901). On February 19, 1974, the Court

entered an order postponing the question oi jurisdiction to’

the hearing of the case on the merits. For reasons which will

be more fully detailed in the argument portion of this brief,

it is the position of the State of Georgia that jurisdiction is

lacking because (1) the judgment of the Supreme Court of

Georgia from which the appeal is taken is not a “final order’

within the meaning of 28 U.S.C. § 1257, and (2) that the

State statute alleged to have been drawn into question is in

fact only tangentially involved and hence not a proper basis

for an appeal under 28 U.S.C. § 1257(2).

STATUTE AND CONSTITUTIONAL

PROVISIONS INVOLVED

Tangentially involved to the extent that it is reflective of

the State’s policy with respect to the right of privacy of a.

female who has been victimized by the crime of rape is Ga.

Laws 1968, pp. 1249, 1335 (Ga. Code Ann. § 26-9901):

“Tt shall be unlawful for any news media or any other

person tO print and publish, broadcast, televise, or dis-

seminate through any other medium of public dissemi-

nation 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 cor- .

poration violating the provisions of this section shall,

upon conviction, be punished as for a misdemeanor.”

Also involved are the following provisions of the United

States Constitution: .

U. S. Constitution, Amendment I:

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

Pah fits ee)

4

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.’

U. S. Constitution, Amendment IV:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, out upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

U.S. Constitution, Amendment V:

“No person shall be held to answer for a capital, or other-

wise infamous crime, unless ona presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty or property, without due process of law; nor

shall private property be taken for public use, without

just compensation.”

U.S. Constitution, Amendment IX:

“The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others retained

by the people.”

ULS. Constitution, Amendment X:

“The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are re-

served to the States respectively, or to the people.”

U.S. Constitution, Amendment XIV, Sec. 1:

‘All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive anv person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

Pb NE SNR CAPE cB nah POLE SO NL UN aU WERE.

5

QUESTIONS PRESENTED

1. Does this Court have jurisdiction under 28 U.S.C. § 1257

tobear this appeal?

2. Is the right of privacy of a grieving father whose daugh-

ter died shortly following and possibly as a consequence

of being raped, as applied to his right not tc have his

deceased daughter’s name publicized and broadcast by

the news media in connection with the crime, to be set -

st naught by virtue of the First Amendmént?

STATEMENT

The factual background of the case has been set forth in

considerable detail by the able briefs submitted on behalf. of

the Appellants and Appellees and would not appear to require

any further amplification in this amicus brief.

ARGUMENT

1. This appeal does not fall within the purview of 28

U.S.C. § 1257 and consequently should be dismissed

for want of jurisdiction.

(a) There is no “‘final’”’ judgment.

To be reviewable by this Court under 28 U.S.C. § 1257 the

judgment or decree rendered by the highest court of a State

must be a final judgment. This Court has construed the requi-

site finality under the statute to be the “effective determina-

tion of the litigation,’ ! or in other words an adjudication

fully determining the rights 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 court

directed.? In Republic Natural Gas Co. v. Oklahoma, 334 U.S.

62, 68 (1948), for example, the court said:

‘«.. . the requirement of finality has not been met merely

because the major issues in a case have been decided and

1 See Market Street Railway Co. v. Railroad Commission of Caii-

fornia, 324 U.S. 548, 551 (1945).

2 See Gospel Army v. Los Angeles, 331 U.S. 543, 546 (1947).

SEY

6

only a few loose ends remain to be tied up—for example,

where liability has been determined and all that needs to

be adjudicated is the amount of damages. * * * On the

other hand, if nothing more than a ministerial act remains

to be done, such as the entry of a judgment upon a man-

date the decree is regarded as concluding the case and-is

immediately reviewable.”

In the case at bar the decision of the Supreme Court of

Georgia has not even reached the point of determining lia-

bility, much less the amount of damages. Here even more than

in Republic Natural Gas Co. must it be said that what remains

to be done cannot be described as merely. ‘‘ministerial.’’ The

decision shows on its face that it is but an interim judgment

with the cause having been remanded for full trial on the

merits.? The Georgia Supreme Court in fact did but two things.

It first of all held (favorable to Appellants) that the State

statutory enactment which prohibits disclosure of the identity

of a rape victim c. Ga. Laws 1968, pp. 1249, 1335 (Ga. Code

' Ann. § 26-9901) does not give rise to a civil cause of action

in favor of the victim, or in this case, in favor of the deceased ~

victim’s father. The second holding (adverse to Appellants)

was that the complaint, wholly without regard to the statute,

did set forth cause of action based upon an alleged invasion

of Appellee’s right of privacy by Appellants’ broadcasting and

publicizing his deceased daughter’s name, identifying her as a

rape victim. In remanding the case for further proceedings

‘consistent with its opinion the Supreme Court of Georgi@ made

it abundantly clear that it was not holding that any liability

existed as a matter of law. In the words of that court:

“Although the appellee’s complaint in this case stated a

claim for relief, the public disclosure, admitted by the

3 Nor can it be said that the situation resembles Mills v. Alabama,

384 U.S. 214, 217 (1966), where the Court held that appellate juris-

diction existed under 28 U.S.C. § 1257 in spite of the fact that the

case had been remanded for further proceedings not inconsistent

with the Alabama Supreme Court’s decision. In Mills this Court

carefully noted that the record indicated that under the judgment

of the Alabama Supreme Court the trial on remand would have been

no more than a formal gesture leading inexorably to a conviction.

No such foreordained resuit exists in the case at bar.

Ce Se ee eee TS noe

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ao” 7

appellants, did not establish liability on the part of the

appellants as a matter of law. Whether the public disclosure

actually invaded the appellee’s ‘zone of privacy,’ and if

so to what extent, are issues to be determined by the fact-

finder. And in formulating such an issue for determina-

tion by the fact-finder, it is reasonable to require the

appellee to prove that the appellants invaded his privacy

with wilful or negligent disregard for the fact that rea-

sonable men would find the invasion highly offensive.”

231 Ga. at p. 64, 200 S.E.2d at p. 131.

It goes without saying that the questions of how these issues

would be resolved and whether or not any liability at all would

attach to Appellants’ actions remain wholly open. Should these

questions be resolved in Appellants’ favor, with no liability

being incurred, any and all necessity for this Court’s adjudi-

cation of the constitutional issues raised will be obviated. Thus

dismissal of this appeal from a judgment which is manifestly

not ‘final’? within the meaning of 28 U.S.C. § 1257 would

also be in accord with this Court’s long-standing policy of

refraining from constitutional adjudications where they are

not absolutely necessary to the decision of the case. See, e.g.

Alexander v. Louisiana, 405 U.S. 625, 633 (1972); United States

v. International Union United Automobile, Aircraft and Agri-

cultural Implement Workers of America, 352 U.S. 567, 590-591

(1957); Ashwander v. Tennessee Valley Authority, 297 U.S. 288,

346-347 (1936). We respectfully submit that for the foregoing

reasons this appeal should be dismissed for want of jurisdiction.

(b) The State statute claimed to have been drawn into ques-

__tion in this case is really only tangentially involved and

hence will not support an appeal under 28 U.S.C.

§ 1257(2).

As we have already pointed out, the one clear holding of

the Supreme Court of Georgia in connection with Ga. Laws

1968, pp. 1249, 1335 (Ga. Code Ann. § 26-9901) was in favor

of rather than against Appellants. The court held that the

statute, which prohibits and declares it to be a misdemeanor:

‘«. . to print and publish, broadcast, televise or dissemi-

nate through any other median of public dissemination . . .

the name or identity of any female who may have been

_———————————

ow BI

EA ERE DORN ON eI A eal REL Fo PILE EAE

8

raped or upon whom an assault with intent to commit

rape may have been made”,

had not created a civil cause of action for damages in favor

of the victim or anyone else. The trial court’s summary judg-

ment to the contrary was thereupon reversed. See 231 Ga. at

pp. 61-62, 200 S.E.2d at p. 129.

In so holding the Supreme Court of Georgia, in its original

opinion, expressly refrained from any adjudication of the

statute’s constitutionality, saying:

“Since we rule that the statute did not create a civil cause

of action, it is unnecessary for us to consider and rule on

the various attacks made on the statute by the a aatecaanil

231 Ga. at p. 62, 200 S.E.2d at p. 130.

Had the matter ended here there obviously would have been

no question as to the absence of that State court adjudication

of a State statute’s constitutionality necessary to jurisdiction

under 28 U.S.C. § 1257(2). But this initial clarity was unfortu-

nately somewhat clouded by the language of the additional

opinion which the court rendered in denying Appellants’ motion

for rehearing. The motion was based upon the contention that

the public disclosure or publication in question was “‘a matter

of public concern” and therefore constitutionally privileged.

(A. 57-58) The Supreme Court of Georgia, concluding that the

statute was declaratory of the State’s public policy on the

matter, thought it to be “[iJmplicit, though not explicit” in

Appellants’ argument that the Court should declare the statute

violative of the First Amendment. 231 Ga. at p. 68, 200 S.E.2d

at p. 134. The court replied.to this “implicit” argument by

saying that a majority of the court did not consider the statute

to be in conflict with the First Amendment, adding that: ‘““We

hold that this 1968 Georgia statute is not unconstitutional. . . .”

231 Ga. at p. 69, 200 S.E.2d at p. 134.

But while the Supreme Court of Georgia may have used the

word “‘hold’’ we cannot help but question whether what it said

it held is in fact a holding. Appellants were manifestly not

being prosecuted under this criminal statute and the court in

no way modified its decision (favorable to Appellants) that it

could not be the basis of any civil liability. As we see it the

a,

CEO fe SAN, DERI AE TY PTO TS

9

statute is involved only tangentially in the sense that it is

reflective of the State’s public policy concerning the public

disclosure of the name or identity of a rape victim. Such

tangential involvement is not ordinarily sufficient to satisfy

the jurisdictional requirements of 28 U.S.C. § 1257(2). See

Garrity v. New Jersey, 385 U.S. 493,,495-496 (1967). For this

reason too we think the appeal should be dismissed on juris-

dictional grounds.

2. The righte of privacy of a grieving father whose

daughter died shortly following and possibly as a

consequence of being raped, as applied to his right

not to have his deceased daughter’s name publi-

cized and broadcast by the news media in connec-

tion with the crime, needs not and ought not to be

destroyed by the First Amendment.

(a) The “‘right of privacy” is fundamental.

The philosophical basis of the Supreme Court of Georgia’s

initial American recognition of the right to privacy in Pavesich

v. New England Life Insurance Co., 122 Ga. 190, 50 S.i. 68

(1905), was that a person’s “liberty’’ embraces more than

mere freedom from physical restraint, that to the extent that

it does not interfere with the rights of another or of the public

it also protects his personal sensibilities and that which might

presently be referred to as his chosen “‘life-style.’”’ In words

which ring as trué today as they did in 1905:

‘‘When the law guarantees to one the right to the enjoy-

ment of his life, it gives to him something more than the

mere right to breathe and exist. While of course the most

flagrant violation of this right would be deprivation of

life, yet life itself may be spared and the enjoyment of

life entirely destroyed. An individual has a right to enjoy

life in any way that may be mest agreeable to him, ac-

cording to his temperament and nature, provided that in

such enjoyment he does not invade the rights of his neigh-

bor or violate public law or policy.” 122 Ga. at p. 195,

50 S.E. at p. 70.

The court concluded that:

“The right of privacy within certain limits is a right de-

4k Be Keel RN

&

10

rived from natural law, recognized by the principles of

municipal law, and guaranteed to persons in this State by

the constitutions of the United States and of the State

of Georgia, in those provisions which declare that no per-

son shall be deprived of liberty except by due process of

law.”’ 122 Ga. at p. 197, 50 S.E. at p. 71.

That it wasn’t until Pavesich that the infringement upon an

individual’s right to privacy became recognized as a common

law tort, is not to say that the concept isn’t much older. As

pointed out by Professor Roscoe Pound in Interests of Per-

sonality, 28 Harv. L. Rev. 343, 357 (1915):

“In Greek law every infringement to the personality of

another is... (contumelia); the injury to honor, the in-

sult, being the essential point, not the injury to the body.

In Roman law, injury to the person is called injuria,

meaning originally insult, but coming to mean any willful

disregard of another’s personality. In consequence the

beginnings of law measure composition not by the extent

of the injury to the body, but by the extent of injury to

honor and the extent of the desire for vengeance thus

aroused, since the interest secured is really the social

interest in preserving the peace.”

Indeed Pavesich itself was in great measure brought about by

.the espousal of this right in the much cited law review article

of Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev.

193 (1890).

While judicial acceptance of the Pavesich decision in other

jurisdictions was initially somewhat slow, it was quite gen-

erally applauded in law review articles. As Professor Pound

put it:

‘“*.. while the law is slow in recognizing this interest as

something to be secured in and of itself, it would seem

that aggressions of a type of unscrupulous journalism,

the invasions of privacy by reporters in competition for

a ‘story,’ the activities of photographers, and the temp-

tation to advertisers to sacrifice private feelings to their

individual gain call upon the law to do more in the attempt

to secure this interest than merely take incidental account

of infringements cf it. A man’s feelings are as much a part

Se ERLE a IRL a! NA

11

of his personality as his limbs.’’ Pound, Interests of Per-

sonality, 28 Harv. L. Rev. 343, 363-364 (1915).

But the pace of judizial recognition was not destined to

remain so slow. According to Dean Prosser:

“Along in the thirties, with the benediction of the Re-

statement of Torts, the tide set in strongly in favor of rec-

ognition, and the rejecting decisions began to be over-

ruled. At the present time the right of privacy, in one

form or another, is declared to exist by the overwhelming

majority of the American courts.”’ Prosser, Privacy, 48

Cal. L. Rev. 383, 386 (1960).

Mr. Nizer tells us in The Right of Privacy, 39 Mich. L. Rev.

526, 559 (1941), that:

. the doctrine grew up in response to a need created

by the complexities of modern life.”

And lest it be thought that the invasions of privacy made

possible by electronic eavesdropping devices pose problems

unique to the present generation, it may be pointed ont that

as early as 1939 Georgia’s Court of Appeals concluded that an

individual’s right to privacy had been infringed by a hidden

microphone which had been placed in her private hospital

room to monitor her conversations. See McDaniel v. Atlanta

Coca-Cola Bottling Company, 60 Ga. App. 92, 2 8.E.2d 810

(1939).

The Supreme Court of Georgia has also taken the lead in

recognizing that the individual sensibilities protected by the

right of privacy may in some situations include relational in-

terests or the feelings engendered by close familial bonds. This

. was presaged by that court in its very initial “right to privacy”’

decision, Pavesich v. New England Life Insurance Co., 122 Ga.

190, 210, 50 S.E. 68, 76 (1905), where by way of dicta it was

suggested that in a proper case the relatives of a deceased

could protect the memory of their kinsman. Subsequently, in

Bazemore v. Savannah Hospital, 171 Ga. 257, 1535 S.E. 194

(1930), the parents of a malformed infant who had died shortly

following his birth were held to have had their right to privacy

infringed by the publication of their deceased son’s picture in

the newspaper. Accord, Smith v. Doss, 251 Ala. 250, 253, 37

BOP MSEC

12

So.2d 118, 121 (1948). Thi “‘relational interest’’ application of

the right to privacy has been favorably commented upon in

Green, Relational Interests, 29 Ill. L. Rev. 460 (1934). As stated ©

by Robert Kennedy in The Right to Privacy in the Name, Repu-

tation and Personality of a Deceased Relative, 40 Notre Dame

Lawyer 324, 325 (1965), the concept rests upon:

“«... the intimacy of the relation which should give the

relative a protectable interest in the name, personality

and reputation of the deceased. The intimacy is such that

the postmortem abuses of name, personality and>reputa-

tion necessarily harm surviving relatives.”

Since it is individual sensibilities which the “right of privacy”

protects, we would submit that there is nothing at all illogical

in recognizing that the individual’s deepest feelings quite or-

dinarily include those which stem from such close familial

affections as husband and wife or parent and child.

This is not to say, on the other hand, that ‘‘sensibility”’ is

a purely subjective matter to be determined by whatever a

given plaintiff personally finds offensive. As Dean Wade puts

it: ,

“The standard for invasion of the right of privacy is

phrased in terms of the effect of the statement on the

plaintiff, himself, and indicates that it must be offensive

to him. But the standard is still not subjective; the courts

speak of the requirement that it be offensive to a person

of ordinary sensibilities.’”” Wade, Defamation and the Right

of Privacy, 15 Vand. L. Rev. 1093, 1111 (1962).

The protection afforded by law does not extend to super-

sensitiveness or agoraphobia. See Davis v. General Finance &

Thrift Corp., 80 Ga. App. 708, 711, 57 S.E.2d 225, 227 (1950);

62 Am. Jur.2d Privacy § 13; Prosser, Privacy, 48 Cal. L. Rev.

383, 390-391, 396 (1960).

Nor do we question the fact that the right to privacy is one

which must necessarily be limited by the legitimate rights of

others or of the public. This was fully recognized even in the

initial Pavesich decision when the Georgia Supreme Court

stated that:

“It may be that there will arise many cases which lie near

PRUE IL IE POLINA ENG LNA ENN AN EE LIED OR tat ar be at tee

13

the border line which marks the right of privacy on the

one hand and the right of another individual or the public

on the other. But this is true in regard to numerous other

rights which the law recognizes as resting in the indi-

vidual.” See 122 Ga. at p. 200, 50 S.E. at p. 72.

While for reasons to be discussed we do not think it is appli-

cable in the case at bar, one illustrative limitation of the night

of privacy is that it cannot be applied so as to prohibit the

publication or broadcasting of a matter which is of legitimate

public or general interest. See, e.g. Pavesich v. New England

Life Insurance Co., 122 Ga. 190, 204, 50 S.E. 68, 74 (1905);

Annot. Right of Privacy, 168 A.L.R. 446, 453 (1944). This as

' well as other competing interests and values of both other in-

dividuals and of the public in general will almost always call

for judicial “balancing” on a case by case basis, and we shall

deal with the “balancing”’ involved in the case at bar in a

subsequent portion of this brief.

Before departing from this threshold discussion of the right

to privacy, however, it is of utmost importance to note that

while its precise boundaries may not be entirely clear, the

right is in principle at least, widely recognized to be one which

is not only constitutionally protected but which rises to the

level of a “fundamental right.” As is not infrequently the case

regarding such “fundamental rights,” the citizen’s privacy has

been deemed to have been secured by multiple provisions of

our Constitution. We have already mentioned that Pavesich

refers to the right to privacy as being part of the citizen’s

“liberty,’’ and as such protected against undue governmental

interference by the ‘‘due process” clause of our Constitution.

See p. 10, supra. This, of course, involves both the Fifth and

Fourteenth Amendments. This Court, as the Supreme Court

of Georgia in Pavesich, hes expressly recognized that the pro-

tection of ‘liberty’ under these provisions is not limited to

mere physical restraint but also includes the safeguarding of

various rights of his personality. See Board of Regents v. Roth,

408 U.S. 564, 572-573 (1972); Bolling v. Sharpe, 347 U.S. 497,

499-500 (1954).

The right of a citizen to privacy also appears to be firmly

rooted in the Fourth Amendment, which is designed, inter alia,

LEE OY ONS LOGIN SESS EAE AE ta

14

to protect: ‘‘(t)he right of the people to be secure in their

persons... .’’ As this Court put it in Davis v. United States,

328 U.S. 582, 587 (1946), the Fourth Amendment affords.

“protection of the privacy of the individual, his right to be

let alone.”

In Harris v. United States, 331 U.S. 145, 150 (1947), it was

similarly pointed out that:

“This Court has consistently asserted that the rights of

privacy and personal security protected by the Fourth

Amendment ‘... are to be regarded as the very essence

of constitutional liberty; and the guarantee of them is as

important and imperative as are the guarantees of the

other fundamental rights of the individual citizen...’ ”’

It has also been suggested that there is a First Amendment

interest in protecting the privacy of the individual which is

no less important than the protection which is provided for

his “freedom of speech.” A note entitled Privacy in the First

Amendment, 82 Yale L. J. 1462 (1973), reasons that:

. if a free expression system is to be maintained, the

First Amendment has an interest in protecting the privacy

of the individual,” Jd. at p. 1468.

“The First Amendment has an interest in protecting a

broad range of speech; it has also a parallel interest in

protecting a broad range of privacy.” Id. at p. 1469.

In Griswold v. Connecticut, 381 U.S. 479 (1965), this Court

appears to have reached the same conclusion when it said:

. the First Amendment has a penumbra where privacy

is protected from governmental intrusion.” 381 U.S. at p.

483.

Griswold, of course, is also of significance ir connection with

the concurring opinion of Justices Goldberg, Warren and

Brennan. Their views would appear to recognize both the

fundamental nature of the citizen’s right of privacy and the.

fact that it is protected by multiple provisions of our Consti-

tution. The citizen’s privacy is referred to in this concurring

opinion as being among those fundamental rights protected by

EDS Bi atti st LSE OP AIDEN PAE ALBAN REAL

15

the Ninth Amendment, 381 U.S. at pp. 488-494.4 In connec-

tion with the protection under the Fourteenth Amendment’s

“due process” clause this concurring opinion further rezuinds

us that:

“The Court stated many years ago that the Due Process

Clause protects those liberties that are ‘so rooted in the

traditions and conscience of our people as to be ranked

as fundamental’.” 381 U.S. at p. 487.

In summary, we do not believe that there can be the slightest

doubt as to the fact that the individual’s right to privacy, which

the Supreme Court of Georgia first recognized in Pavesich, is

today to be counted as one of the most important rights which

our Constitution and laws accord to the individual citizen. He

has indeed a broad right to be let. alone in his happiness and

contentment as well as (in the case at bar) in his grief.

(b) Freedom of Speech.

It goes without saying that freedom of speech is also among

the unique values of our civilization. Yet, we think, it is equally

obvious that this fundamental value is not and cannot be any

more ‘‘absolute” than is the at least equally important “right

to privacy.” > For example, “freedom of speech” has never

‘For the same reasons the right to property might be construed

to be one of those rights reserved to the people by the Tenth Amend-

ment.

5 It is arguable, of course, that the “right to privacy” is of an even

higher priority than freedom of speech. According to the late Pro-

fessor Alexander Meiklejohn the central role and purpose of freedom

of speech under the First Amendment is to enhance the operation

of our particular form of government—where it is the People who

govern, and where it is the agencies of government, federal and state

who are their servants rather than vice versa. See Meiklejohn, The

First Amendment is an Absolute, The Supreme Court Review, pp.

245, 253 (1961). Thus the speech which Dr. Meiklejohn considers to

be protected by the First Amendment is that which is of “‘govern-

mental importance” (i.e. having some involvement with the self-

government of our citizens). See also Brennan, The Supreme Court

and the Meiklejohn Interpretation of the First Amendment, 79 Harv. 1

(1965). This view has achieved considerable support by the courts

of late. In New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964),

for example, this Court spoke of our “profound national commit-

erent? Fe —

ERP T A Re

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16

been thought of as protecting perjury, the misbranding of food

or drugs, fraud and deceit, contempt of court, Hatch Act vio-

lat ions, the cry of fire in the crowded theater, or the numerous

oth er oral and written declarations which society has thought

nec essary to disallow. Thus has it been observed that:

‘Freedom of speech under Anglo-American law has never

been an absolute right, and numerous exercises of free

speech (and of free press) have been subjecter! to inhibit-

ing legal sanctions, both criminal and civil, almost from

the beginning of our common law heritage. ” Leflar, The

Free-ness of F Free Speech, 15 Vand. L. Rev. 1073 (1962).

5 (cont’d)

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

inhibited, robust, and wide-open’”’ and said:

“The general proposition that freedom of expression upon public

questions is secured by the First Amendment has long been

_ settled by our decisions. The constitutional safeguard, as we

have said, ‘was fashioned to assure unfettered interchange of

ideas for the bringing about of political and social changes de-

sired by the people.’ ” 376 U.S. at p. 269.

In a similar vein, recent decisions involving the ‘‘freedom of speech’’

of teachers have distinguished between a teacher speaking out as a

citizen on matters of public concern (protected by the First Amend-

ment), see, e.g. Pickering v. Board of Education of Township High-

school, 391 U.S. 563, 568 (1968), and a teacher speaking as a teacner

on matters not of public concern (not protected by the First Amend-

ment). See, e.g. Clark v. Holmes, 474 F.2d 928, 931 (7th Cir. 1973),

cert. denied, 411 U.S. 972 (1973).

But while “freedom of speech” (under the Meiklejohn interpre-

tation at least) has the proper functioning of our particular form of

government as its central purpose, it is difficult to justify even so

much as the very existence of government, regardless of its form, if it does

not perform its most basic duty of all—which is protection of the

personality of its citizens. As Art. I, Sec. I, Par. II of the Constitu-

tion of the State of Georgia of 1945 (Ga. Code Ann. § 2-102) expressly -

recognizes:

“Protection to — and property is the paramount duty of

government .

hs hainees sheath tac Siabin. al Dido sided 4b eictinnh ils ileite ean

bilities from unwarranted invasion or publicity is an indispensible

part of his personality. We agree with what Justice Stewart said

about the citizen’s personality in Rosenblatt v. Baer, 383 U.S. 75, 5z

(1966) [concurring opinion]:

17

As this Court put it in Chaplinski v. New ns 315

U.S. 568, 571-572 (1942)::

“Allowing the broadest scope to the language and purpose

of the Fourteenth Amendment, it is well understood that

the right of free speech is not absolute at all times and

under all circumstances. There are certain well-defined

and narrowly limited classes of speech, the prevention

and punishment of which have never been thought to

raise any Constitutional problem. These include the lewd

and obscene, the profane, the libelous and the insulting

or ‘fighting’ words—those which by their very utterance.

inflict injury or tend to incite an immediate breach of the

peace. It has been well observed that such utterances are

no essential part of any exposition of ideas, and are of

such slight social value as a step to truth that any benéfit

that may be derived from them is clearly outweighed by

the social interest in order and morality.”

Indeed ever. where the language in question clearly falls within

the protective penumbra of the First Amendment (e.g. speech

made as a citizen-critic upon matters of public concern), the

Court has recognized the possibility of the interest in the pro-

tected speech being overbalanced by other interests. In Pick-

ering v. Board of Education of Township Highschool, 391 US.

563, 568 (1968), for example, it was said that:

“The problem in any case is to arrive at a balance between

the interests of the teacher, as a citizen, in commenting

upon matters of public concern, and the interest of the

5 (cont’d)

“The right of a man to the protection of his own reputation

from unjustified invasion and wrongful hurt no more

than our basic concept of the essential dignity and worth of

every human being—a concept at the root of any decent system

of ordered liberty. The protection of private personality, like

the protection of life itself is left primarily to the individual

State under the Ninth and Tenth Amendments. But this does

not mean that the right is entitled to any less recognition by

this Court as a basic of our constitutional system.”

As fundamental as “‘freedom of speech” may also be in our consti-

tutional scheme of things, we submit that it is reajJy not unthinkable

to suggest that in a thoughtful ordering of valués the citizen’s right

to privacy may be of even greater importance.

—w remem ce “ : porwr ontere 7

18

_—

State, as ér, in promoting the efficiency of the

¢ service it performs through its employees.”

3 PSYC 2

One commentator has observed in reviewing the various ex-

ceptions and limitations of “free speech’’:

‘“‘What the courts have done in these hard cases has been

essentially the same as they have done in the easy mass

of cases. They have weighed the social values inherent in

the particular free speech, as they saw these values, against

the competing interests, and have concluded that the val-

ues inherent in the competing interests were the weightier.”’

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

1083-84 (1962).

(c) The balancing of the fundamental rights of “privacy”

and ‘‘freedom of speech” in the present case.

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

50 S.E. 68 (1905), did not ignore the inevitable conflict and

balancing which is inherent in the simultaneous existence of

the citizen’s right to privacy and his constitutional guarantees

respecting freedom of speech and the press. The court observed

that:

“The stumbling block which many have encountered in

the way of a recognition of the existence of a right of

privacy has been that the recognition of such right would

inevitably tend to curtail the liberty of speech and. the

press. The right to speak and the right of privacy have

been coexistent. Each is a natural right, each exists, and

each must be recognized and enforced with due respect

for the other.” 122 Ga. at p. 202, 50S.E. at p. 73.

With respect to the limitations of freedom of the press and

speech the Georgia court said:

“The right preserved and guaranteed against invasion by

the constitution is therefore the right to utter, to write,

and to print one’s sentiments, subject only to the limita-

tion that in so doing he shall not be guilty of an abuse

of this privilege by invading the legal rights of others.’’ 122

Ga. at p. 203, 50 S.E. at p. 73 (emphasis added).

The right to privacy, on the other hand, is also limited. One

of the most important limitations is that it cannot be applied

RE eae ee ee Re ee ee eke De En Ad ea Re ee eek d

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19

so as to prohibit the publication or broadcasting of matters

which are of legitimate public or general interest. This too was

recognized in Pavesich. See 122 Ga. at p. 204, 50 S.E. at p. 74.

And as this Court more recently said in Time, Inc. v. Hill,

385 U.S. 374, 388 (1967):

‘Freedom of discussion, if it would fulfill its historic func-

tion in this nation, must embrace all issues about which

information is needed or appropriate to enable the mem-

bers of society to cope with the exigencies of their period.”

Stripped to its bare bones, Appellants’ present case (dis-

rezarding its jurisdictional problems) rests squarely upon their

claim that broadcasting the name of Mr. Cohn’s deceased

daughter on television as the victim of multiple rapes—regard-

less of what it did to him in his scrrow vver the event—is, as

this Court put it in Time, Inc. v. Hill, supra, ‘needed or appro-

priate to enable the members of Saciety to cope with the

exigencies of {our} period.’’ Thus, say Appellants, their identi-

fication of the victim is privileged as a matter of legitimate

public interest and concern. We not only strongly disagree, we

find the argument quite incredible. Can it seriously be main-

tained that there is not a clear distinction between informing

the public that a particular crime has been committed (along

with full airing of all essential details, if need be) and the dis-

closure of the victim’s name by the news media? We think it

to be a self-evident truth that:

“In public disclosure cases in which the plaintiff is not

well-known, the First Amendment interest of the public,

operating through the publisher, is satisfied by the pub-

lication of the fact or event; the First Amendment interest

of the subject is satisfied if the publisher refrains from

identifying him. Hence, there is no constitutional objec-

tion to preserving a tort remedy for the plaintiff if the

publisher does identify him and thereby injures his pri-

vacy.”’ Note, Privacy in the First Amendment, 82 Yale

L. J. 1462, 1470-1471 (1973). N

What possible societal interest can there possibly be in allow-

ing WSB-TV to claw open the still fresh wounds of the rape

victim’s father? ,

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20

Appellants seem to take the view that what constitutes a

legitimate public interest or concern is a question which falls

exclusively to the unfettered discretion of the leviathan news

media. See, e.g., Appellants’ Brief, pp. 29. Should this disaster

ever come to pass it seems obvious to us that the right of the

individual citizen to privacy in this country is dead. To the

news media whatever they desire to print would ipso facto be

a matter of public interest and concern. Surely in a society

which prides itself in its belief in the dignity of man we can

do better than this for the privacy (i.e. “liberty’’) of the indi-

vidual citizen. The balancing, after all, is not that which must

take place between the right to privacy of one citizen and the

freedom of speech of another: citizen. It is between the indi-

vidual citizen and an aggressive and frequently insensitive

communications media whose powers in many respects have

come to rival those of goverrment itself, whose actions can

be almost as repressive and injurious to the personality of the

individual citizen as can those of government itself, but which

unlike government itself is in no way responsible to the people

through the ballot. We think it is entirely open to question

whether the priority to be given to the freedom of speech of

these large corporate commercial enterprises is of the same

level as that secured to the individual citizen. We respectfully

submit that it is entirely proper for the government, which 7s

responsible to the people, to establish guidelines (subject, of

course, to constitutional limitations) as what will and what

will not be deemed to be a matter of legitimate public concern

and interest—at least where the individual citizen’s right to

privacy is concerned. Government may do so; we submit, both

through appropriate legislation or through judicial decisions.

If the right of privacy is constitutionally protected, surely it

can be legislatively vindicated. .

In a situation quite analogous to the case at bar, i.e. State v.

Evjue, 253 Wise. 143, 33 N.W.2d 305 (1948), a publisher who

violated a Wisconsin statute making it unlawful to publish the

6In a somewhat different context this Court has indicated that

commercial speech is not accorded the same degree of protection as

the comments of the citizen-critic concerning his governance. See

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations,

413 U.S. 376 (1973).

Se

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21

identity of a rape-victim contended that his prosecution con-

flicted with his constitutional guarantees of “freedom of speech”

and ‘freedom of the press’’ as well as with his “‘due process”

and ‘equal protection” rights under the Fourteenth Amend-

ment. In rejecting this contention the Supreme Court of Wis-

consin gave what we believe to be the correct answer when

it said:

. this statute is intended to protect the victim from

embarrassment and offensive publicity which no doubt

have a strong tendency to affect her future standing in

'- society. In addition to that it is a well known fact that

many crimes of the character described go unpunished

because the victim of the assault is unwilling to face the

publicity which would follow prosecution. The feelings

of a female under such circumstances can -easily be

imagined ... .”’ 33 N.W.2d at p. 312.

“Tt is considered that there is a minimum of social value

in the publication of the identity of a female in connec-

tion with such an outrage. Certain itis that the legisla-

ture 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

law with the identity of the victim. When the situation

of the victim of the assault and the handicap prosecuting

_ Officers labor under in such cases is weighed against the

benefit of publishing the identity of the victim in con-

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

doubt that the slight restriction of the freedom of the

press prescribed by [the state statute] is fully justified.”

33 N.W.2d at p. 312.

We respectfully submit that the deanniind of the Supreme

Court of Wisconsin is entirely sound. Cf. Nappier v. Jefferson

Standard Life Ins. Co., 322 F.2d 502 (4th Cir. 1963). Nor, of

course, is this protection of the victim of the crime of rape

the only instance where statutes have been enacted to prevent

publication of the names of those involved in a crime. Ga.

Laws 1971, pp. 709, 751 [Ga. Code Ann. § 24A-3503(g)], for

example, provides that:

“The name or picture of any child under the jurisdiction

of the [juvenile] court for the first time shall not be made

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22

public by any news media, upon penalty of contempt ...,

except as authorized by an order of the court.”

If Appellants’ position is correct, statutes of this genre would

also seem to be doomed even though this Court has seemingly

approved of a state’s policy decision to keep such matters

confidential. See In Re Gault, 387 U.S. 1, 25 (1967).

Actually, courts have protected the individual privacy of

* citizens involved in crime even in the absence of statute. In

Briscoe v. Reader’s Digest Association, 4 Cal.3d 529, 483 P.2d

34 (1971), the Supreme Court of California was faced with a

situation where a man who had been convicted of crime some

eleven years earlier, but who had since led an honorable life

and assumed a respectable place in society, awoke to find his

life and dreams shattered by the entirely truthful retelling of

his former criminal activities in the pages of Reader’s Digest.

With full recognition that the central purpose of the First

Amendment is to give the citizenry the most complete possible

understanding of the problems with which they must deal in

a self-governing society, and with full recognition that this

would in many cases cover the reporting of recent events even

where it might involve the publication of an individual's name

or likeness, the Supreme Court of California nonetheless held

that the right to privacy claim befure it was one which should

be resolved by the jury. In the words of that court:

“On the assumed set of facts before us we are convinced

that a jury could reasonably find that plaintiff’s identity

as a former hijacker was not newsworthy.” 483 P.2d at

_ ip. 43. ,

In discussing the balancing involved between the competing

interests of speech or press and the individual citizen’s privacy,

the court said:

“We have previously set forth criteria for determining

whether an incident is newsworthy. We consider (1) the

social value of the facts published, (2) the depth of the

article’s intrusion into ostensibly private affairs, and (3)

the extent to which the party voluntarily acceded to a

position of public notoriety.’’ 483 P.2d at p. 43.

If the law, whether by statute or by judicial decision, is

——

FO BL th Re

23

permitted to protect the privacy of those who have engaged

in criminal activities, surely the sensibilities of the victim can

also be given some consideration. It is undoubtedly most illog-

ical for a female who has been victimized by the crime of rape

to feel a sense of shame or guilt over the matter. But illogical

or not it is a fact of the real world is that they not infrequently

do. Ga. Laws 1968, pp. 1249, 1335 (Ga. Code Ann. § 26-9901),

which as the Wisconsin statute at issue in Evjue makes it un-

lawful to publish or broadcast the name of a rape victim, does

no more than recognize this fact of life. Moreover, while afford-

ing some degree of privacy to the victim and her family, the

statute also serves the salutary public purpose of facilitating

the reporting and prosecution of the crime. We agree with the

assessment of the Supreme Court of Wisconsin that any re-

striction which this might place upon the freedom of the press

or free speech of the news media is of very little consequence

when viewed in the light of the competing interests of the

victim’s right to privacy and the State’s enforcement of its

criminal statutes on one of the most loathsome crimes known

to man.

| 24

CONCLUSION

For the reasons stated, we think that jurisdiction over this

case is lacking under 28 U.S.C. § 1257. If, on the other hand,

jurisdiction should for any reason be deemed to be present,

we think that the decision of the Supreme Court of Georgia

is clearly correct and should be affirmed. At pages 66 and 67

of their Brief, Anpellants say that ‘Instantaneous dissemina-

tion of news in today’s world of global and satellite communi-

cation through electronie means now requires more than ever

an explicit enunciation of the protection afforded the press in

America to publish the news... .’’ We would say that the

instantaneous electronic dissemination to which Anpellants

; refer much more urgently requires an increase in the protec-

3 tion which the law provides for the personal liberty of the

3 private citizen (i.e. his right to privacy or to be let alone)

4 against the intrusion upon‘his personal life by the communi-

cations media.

ARTHUR K. BoLton

Attorney General

Rosert S. Srusss, II

; Executive Assistant

[ Attorney General

: Don A. LANGHAM

i Assistant Attorney General

Please address all ALFRED L. Evans, JR.

communications to: Assistant Attorney General

ALFRED L. EVANS, JR.

Assistant Attorney General

132 State Judicial Bldg.

Atlanta, Georgia 30334

Phone: 404-656-3330

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