Idaho Limits Invasion of Privacy Tort

John Maltbie at actualmalice.com reports that the Supreme Court of Idaho recently decided a case limiting its tort of invasion of privacy on First Amendment grounds. The plaintiff sued the Idaho Statesman, a newspaper, when the newspaper published a historical report on a 1950s homosexuality scandal in which the plaintiff had allegedly been involved. The Court considered two claims: "Invasion of Privacy by Intrusion" and "Invasion of Privacy By Public Disclosure of Embarrasing Private Facts." The plaintiff had withdrawn a "false light invasion of privacy" claim, and the court quickly discarded the plaintiff's "negligent and/or reckless infliction of emotional distress" claim after analyzing the other claims.

With regard to the first claim, the Court held that "The examination of a public court record cannot be the basis of a claim for invasion of privacy by intrusion." Uranga v. Federated Publications, Inc., d/b/a The Idaho Statesman, (Idaho 2003) (slip op. [PDF] at 4). The court explained that the invasion of privacy tort arises not when private facts are exposed to public view, but when there is an objectively offensive intrusion into personal solitude or seclusion, "either as to [one's] person or as to [one's] private affairs or concerns." Id. There is no such thing as solitude or seclusion in a court record.

The second cause of action, "Invasion of Privacy By Public Disclosure of Embarrasing Private Facts," was a little trickier to handle. "The cause of action for public disclosure of embarrassing private facts 'provides for tort liability involving a judgment for damages for publicity given to true statements of fact.'" Id. at 5, quoting Restatement (Second) of Torts § 652(d) special note (1976). This means that yes, someone can in some cases be sued for telling the truth. The question how the First Amendment limits that cause of action. The newspaper had published a statement that was in an open public court record. The Idaho Court relied on the U.S. Supreme Court's ruling in Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975), which had held that neither a state statute forbidding people to publish the name of rape victims nor the tort of invasion of privacy could be used to punish a newspaper that published the name of a victim that had been in the public court record. When information has already found its name into a public record, the privacy interest in that information decreases. What is more, there's a strong public interest in what happens in the courts, regardless of whether the events being reported are current or historical. The First Amendment favors that interest and discussion. When a case poses severe privacy problems, a party can ask the courts to seal the record, and nobody asked for that in this case. Finally, the court said that the fact that the report published the plaintiff's name when it probably didn't have to wasn't relevant. The question whether the article was about a matter of public concern is "based upon the article generally. Each fact included within the article need not be a matter of public significance." Slip op. at 9. The court also held that the First Amendment analysis was the same if the plaintiff tried to cast the complaint as one for infliction of emotional distress.

I wonder how many other states have dealt with questions of invasion of privacy arising from publication of information in court records or other public records after Cox. I also wonder whether invasion of privacy by publication of private and embarrassing facts applies when someone republishes embarrassing facts that have appeared in some form of public but nongovernmental record like a (well-reputed) newspaper. Maybe I'll have a look at the Restatement and the digests while I'm at the law library this afternoon. (On the other hand, maybe not.)