Fifth Circuit Dismisses Publication of Private Facts Case Against Newspaper

The Fifth Circuit has dismissed a publication of private facts invasion of privacy case against a newspaper based on the newspaper's newsworthiness defense.

"The San Antonio Express News, a Hearst subsidiary, published an article describing a blackmail scheme carried out by two married attorneys, Ted and Mary Roberts. The article alleged that Mary had engaged in a series of extramarital affairs and that Ted had then extorted thousands of dollars from Mary's lovers by sending them draft Rule 202 petitions (the “202 documents”) naming them as defendants. The 202 documents proposed to seek information on whether Ted had legal grounds for a variety of claims, including divorce and obscenity. These documents also mentioned Ted's intent to contact the men's wives and employers as witnesses. Under threat of litigation, as many as five men entered into settlement agreements with Ted, who received between $75,000 and $155,000 in total as a result. The article also contained the perspectives of five legal scholars as to the merits of the causes of action raised by Ted against Mary and her lovers and the ethics of Ted's behavior. Additionally, the story revealed details of the Roberts’ domestic life, including their purchase of a $655,000 house in a San Antonio suburb, the fact that they had an eight-year-old son, and the fact that Mary was the daughter of a Lutheran minister. Ted Roberts has since been tried and convicted on charges of theft related to the allegations in the article."

..."The 202 documents were discovered by Ted's former law partner, Robert West, and introduced in a separate Texas state court dispute between the two of them. During that litigation, Ted and Mary alleged that West copied and removed the 202 documents from their law offices. The state trial court issued a protective order, in the form of a temporary injunction, which sealed the 202 documents and barred the parties from accessing them. Ted and Mary then filed a motion to permanently seal the 202 documents and posted a public notice of their intent, as required by Texas Rule of Civil Procedure 76a. The Express-News intervened to oppose the sealing. The trial court determined that the 202 documents had not been properly sealed and ordered the entire record unsealed. Ted and Mary appealed, and the Texas Court of Appeals reversed. The court held that the 202 documents were not “court records” as defined by Rule 76a and that the first protective order issued by the trial court was therefore valid. The court modified the temporary injunction to prevent release of the information in the 202 documents to the public, as well as to the parties and their agents. Ultimately, therefore, Express-News was denied access to the 202 documents by the Texas Court of Appeals. At this point, the parties’ accounts of the facts diverge. Express-News maintains that it obtained the 202 documents from another source and published the article. Ted and Mary argue that Express-News violated the Texas state court order and used the litigation documents as the primary source for the article. At some point after the publication of the article, Ted and Mary declared bankruptcy. The bankruptcy trustee, John Patrick Lowe, then brought this suit in district court on behalf of the estate seeking damages for public disclosure of private facts and intentional infliction of emotional distress. Lowe invoked diversity jurisdiction pursuant to 28 U.S.C. §1332(a)(1). On January 26, 2006, the district court dismissed both claims with prejudice under Rule 12(b)(6). Lowe appeals the dismissal of only his claim for public disclosure of private facts. "

Reviewing the dismissal de novo, the appellate court stated, "This court decides as a matter of law whether a publicized matter is of legitimate public concern....The test for determining newsworthiness is to be construed broadly, extending beyond “the dissemination of news either in the sense of current events or commentary upon public affairs” to include “information concerning interesting phases of human activity and embrac[ing] all issues about which information is appropriate so that individuals may cope with the exigencies of their period.” The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report.” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492....In Cinel, this court held that there is a legitimate public interest in facts tending to support an allegation of criminal activity, even if the prosecutor does not intend to pursue a conviction in facts indicating that a priest, who had been granted immunity, possessed child pornography). While at the time the article was published the Roberts had not yet been charged with any criminal activity, the article did mention the district attorney's response, which at the time was seeming disinterest. Maro Robbins & Joseph S. Stroud, Sex, Lawyers, Secrets at Heart of Sealed Legal Case, San Antonio Express-News, June 13, 2004, at A1. Given the broad interpretation of newsworthiness, particularly with regards to alleged criminal activity, an article describing the use of the legal system by prominent local lawyers in a way that could be described as blackmail is a matter of public concern. In this case, the newsworthiness of the story was enhanced by a discussion regarding the legal ethics of Ted's actions, as well as by commentary from the prosecutor's office about its proposed response.

"Lowe also argues that while the details of the alleged blackmail scheme may be matters of public concern, other details within the article, such as the Roberts’ recent purchase of a house and family details were not matters of public concern and could serve as a basis for liability. The Texas Supreme Court holds that, “While the general subject matter of a publication may be a matter of legitimate public concern, it does not necessarily follow that all information given in the account is newsworthy.” Star-Telegram, Inc., 915 S.W.2d at 474. Nevertheless, excessive judicial intervention “foreseeably could cause critical information of legitimate public interest to be withheld until it becomes untimely and worthless to an informed public.” ....Lowe contends that, regardless of the newsworthiness of the article, the district court erred in failing to address his allegation that Hearst violated the state court's protective order by using the 202 documents as the source for its article. However, as the district court noted, under both Texas and Fifth Circuit precedent, the court may only consider the illegality of Hearst's conduct once Lowe has established a prima facie case. See Star Telegram, Inc., 915 S.W.2d at 475 (“Because Star-Telegram's summary judgment evidence negated an essential element of Doe's invasion of privacy cause of action, we do not reach … whether truthful information was lawfully obtained.” (quotation omitted)); see also Ross, 870 F.2d at 275. Even accepting Lowe's allegation that Hearst obtained the information in the article in violation of the court order, there can be no liability for invasion of privacy if the information is a matter of public concern. Lowe is free to seek a contempt charge, see Tex. R. Civ. Pro. 692 (violations of court injunctions punishable by contempt), or allege a cause of action that addresses the source of the information, see Ross, 870 F.2d at 275 (“[T]he discussion leaves open the state's power to protect … privacy by preserving the confidentiality of the state's records, and punishing any who steal the information. Liability for the wrongful taking could encompass damages resulting from the foreseeable publication of the information.”)."

Read the entire opinion here. The case is Lowe v. Hearst Communications, 487 F3d 246 (U. S. C. A., 5th Cir., 2007).