Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 13, 2007

Tenth Circuit Upholds Lower Court Dismissal of Invasion of Privacy Claims Against Media, Police Officer

The Tenth Circuit has upheld a lower court's dismissal of a plaintiff rape survivor's claims of federal invasion of privacy and state intrusion into seclusion against a television station, a reporter, and a police officer, for tortious use of a videotape that documented her estranged husband's sexual assault on her.

Aundra Anderson appeals several district court rulings in this action brought pursuant to 42 U.S.C. § 1983 and Oklahoma state tort law. She had sued Kimberly Lohman, a reporter from local television station KOCO-TV ("KOCO"), and the company that owns and operates KOCO (Ohio/Oklahoma Hearst-Argyle Television, Inc.) (hereinafter "the media defendants"), along with Officer Don Blake of the Norman Police Department. Anderson appeals 1) the district court's order partially granting the media defendants' motion to dismiss by dismissing her federal right to privacy and state intrusion upon seclusion claims, and 2) the district court's order granting the media defendants' motion for summary judgment on her publication of private facts claim. She contends the district court erred in concluding that the media defendants were not state actors, and in concluding that her allegations and proffered evidence failed to support her state law tort claims against them. Additionally, she challenges the district court's denial of leave to amend her complaint to add claims against the media defendants for promissory estoppel and tortious or malicious interference with a contract. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I.

Anderson alleges that she was raped by her estranged husband while she was unconscious. Anderson did not know of the rape until June, 2003, when she found a videotape of the incident. Anderson gave the videotape to Officer Blake and agreed to press charges after Blake promised that the videotape would be kept confidential and would be used only for law enforcement purposes. Anderson alleges that Blake told her that the only people who would see the tape would be himself, his partner, a judge, and a jury.

Before any charges had been filed in Anderson's case, Blake gave an interview to Lohman about Anderson's allegations. By this time, Anderson's husband had already been arrested on other sexual assault charges involving other alleged victims. Blake showed Lohman the videotape, and Lohman asked if she could record it to obtain a "head shot" of the alleged perpetrator. Aplt. App. at 336. Blake contends that he agreed to allow Lohman to record and display the videotape's contents on the air, so long as the broadcast was limited to a view of the perpetrator's face and was "tasteful." Id. at 337. Lohman promised Blake she would only use a view of the perpetrator's face in her report. Anderson alleges that, before the news segment aired, Blake contacted her by telephone and said that he wanted her to speak with Lohman. Anderson replied that she did not want to talk to the press, but Blake put Lohman on the telephone anyway. Anderson refused to answer most of Lohman's questions. During their conversation, Lohman told Anderson that she had viewed the videotape. Anderson alleges that she never authorized Lohman to view or use the videotape in any way. During the 10:00 p.m. newscast of July 3, 2003, KOCO aired Lohman's story about Anderson's allegations, including excerpts from the videotape.

Several days after the broadcast, charges were filed against Anderson's husband for crimes committed against Anderson. After the July 3rd KOCO broadcast, Anderson refused to cooperate with the district attorney's office, and the charges involving Anderson were eventually dropped. Anderson then filed this § 1983 action against Blake and the media defendants. Anderson alleged that all of the defendants had violated her federal constitutional right to privacy in the videotape. She also asserted that the media defendants had invaded her privacy rights under Oklahoma tort law.


Anderson relies on the joint action test and contends she has satisfied the state action requirement by showing the media defendants acted jointly with Blake, a state actor. Private participants acting jointly with state actors can satisfy the state action requirement if the private party is a "willful participant in joint action with the State or its agents." ...We examine "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights."...Anderson argues that the facts alleged in her complaint evince such concerted action by claiming that the media defendants and Blake agreed to misuse Blake's authority to obtain access to and ultimately air the confidential videotape.

Anderson's allegations are inadequate to support her claim that the media defendants acted jointly with Blake to violate Anderson's right to privacy by airing a confidential videotape. Anderson does not allege that the media defendants knew about the confidentiality agreement between Anderson and Blake protecting the videotape's contents from disclosure. While Anderson asks us to infer such knowledge, she provides no basis for such an inference. Further, Anderson's complaint fails to allege facts demonstrating a shared purpose by Blake and the media defendants to violate Anderson's constitutional rights. At most, the complaint alleges that the parties had their own, separate goals: Blake wanted to appear on camera, and the media defendants wanted exclusive access to the investigation....Anderson also argues that the media defendants became state actors because they agreed with Blake to receive the leaked portions of the videotape and to air them on the nightly news. Without more, a reporter does not become a state actor, however, simply because she has received and published information from a governmental official, as the media defendants did here.


Turning briefly to the district court's dismissal of Anderson's intrusion upon seclusion claim, Anderson provides no support in her opening brief for her contention that the district court erred in dismissing this claim....She cites cases which set forth the elements of an "intrusion" claim, but fails to tie those cases to the facts of her case. The only other reference to her intrusion claim is in her "Statement of the Issues for Review," where she states:

The district court erred in dismissing a state claim for "intrusion into seclusion" because release of the entire rape video to the KOCO defendants was an intentional intrusion into a private matter highly offensive to a reasonable person. . . . The violations of federal privacy and the state "intrusion into seclusion" were completed when Blake released the video to the KOCO defendants. Id. at 4-5. These arguments are not only untethered to any legal citation, but also are too conclusory to permit judicial review....We therefore decline to address any claimed issue involving the district court's dismissal of Anderson's intrusion upon seclusion claim.


We next turn to the district court's grant of summary judgment for the media defendants on Anderson's publication of private facts claim. We review the district court's grant of summary judgment de novo under the same standard that the district court applied.


Anderson argues that the district court incorrectly granted the media defendants summary judgment on her publication of private facts claim. Anderson alleges in her publication of private facts claim that the media defendants tortiously published private facts about her when they aired the videotape. We agree with the district court that Anderson failed to create a genuine issue of material fact as to this claim because the material published was substantially related to a matter of legitimate public concern.


Even where certain matters are clearly within the protected sphere of legitimate public interest, some private facts about an individual may lie outside that sphere. . . . [T]o properly balance freedom of the press against the right of privacy, every private fact disclosed in an otherwise truthful, newsworthy publication must have some substantial relevance to a matter of legitimate public interest.


Anderson raises two arguments which challenge the videotape's substantial relevance to a matter of legitimate public concern. First, Anderson argues the videotape was highly personal and intimate in nature. While the sensitive nature of the material might make its disclosure highly offensive to a reasonable person, that does not make the videotape any less newsworthy so long as the material as a whole is substantially relevant to a legitimate matter of public concern.


By holding that the content of the media defendants' newscast was substantially relevant to a matter of legitimate public interest, we do not imply that members of the media may escape any liability for publication of private facts whenever the subject of the publication is an alleged perpetrator of a crime. Some facts about the victim of an alleged crime will be too tangential to the prosecution of the perpetrator to be substantially relevant to a matter of legitimate public interest. Wherever that line may be drawn in other cases, the facts that the media defendants published in this case, for the reasons stated above, are substantially relevant to the alleged criminal activities of Anderson's husband, a matter of legitimate public concern. The focus of the news broadcast was on the perpetrator, not the victim. And as even Anderson acknowledges in her brief, she was never identified by name, and the excerpted portion of the videotape was limited to a few movements of the alleged attacker's naked body without disclosing the sexual acts in great detail; only Anderson's feet and calves were clearly visible, and they bore no identifying characteristics. Aplt. Opening Br. at 11. We can understand entirely why Anderson found the public display of any portion of the tape highly distressing, perhaps especially after having received Blake's assurance that it would be viewed by only himself, his partner, a judge, and a jury. But it is also difficult to see how the broadcast at issue could be said to have no legitimate public interest ­ the test we must apply. Had the broadcast gone further in invading Anderson's privacy, rather than focusing on her estranged husband's wrongdoing, we would have had a very different case. But the simple fact is that this was a broadcast about a rapist, not a rape victim, and the legitimate privacy interests of the two could not be more different.

Read the entire ruling here.

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