Cain v. Hearst Corp.

negative, thereby question dispensing in the question. second with the need to answer the Clyde CAIN, Sr., Appellant, Ura Clyde prison Cain is a inmate in the Texas serving a Department of Corrections life sen- HEARST CORPORATION d/b/a tence for He sued the Hearst Cor- murder. Houston Chronicle poration, the Houston Chronicle Pub- d/b/a Company, Appellee. lishing Company, claiming newspaper that a No. D-4171. placing article his him invaded article, appeared in which Supreme Court of Texas. the Chronicle on June referred to Argued May 1994. thief, burglar, pimp, Cain as a and killer. article, recounting criminal record the Cain’s Decided June summary, that: states many Cain is believed to have killed as as eight people; Cain killed one of his law- yers lawyer’s in 1973 and married the wid- later; ow a few months Cain killed a 67 1977; year “bought” old man in in 1983 he prostitute help from a friend to finance activities; persuaded prosti- his Cain marry park tute to a trader named owner Anderson, so that Cain could kill Anderson prostitute’s and share the inheritance Anderson; balked, prostitute when the year Cain threatened to kill her 5 old daughter daughter’s and “deliver her head basket”; wastepaper prostitute in a later, days married Anderson 3 and on January 1985 Cain killed Anderson. print- complaint Cain’s sole is that the article Cain, Sr., Clyde pro Ura se. ed false information that he was a member of Chumlea, Dallas, Joseph G. amicus curiae. the “Dixie Mafia” and that he had killed as Ogden Stacy Beasley, William W. eight people. Cain asserted Houston, appellee. put these statements him in a false public. was filed in state court one Suit opinion Justice GONZALEZ delivered the years pub- and one-half after the article was Court, in which Chief Justice lished. PHILLIPS, HECHT, Justice Justice Hearst removed case the United join. CORNYN and Justice ENOCH District Court for the Southern Dis States ques- granted This case comes to us on certified trict of Texas. The court Hearst’s Ap- grounds that tions from the United States Court of motion for dismissal on the libel, peals for the Fifth are asked to and held that the Circuit. We Cain’s action lies 1) recog- one-year period expired decide two issues: whether Texas limitations before priva- brought Determining nizes the tort of false the suit. that the Cain 2) tort, cy, recognizes questions if Texas which above are unsettled under Texas governs precedent, Fifth these statute of limitations that action.1 Circuit certified light substantially duplicates questions Corp., to us. v. Hearst Because Cain (5th Cir.1993), lacking many question the tort of defamation while F.3d 345 certified (Feb. limitations, 9, 1994). procedural accepted, Tex.Sup.CtJ. its we answer the first Mendez, (Tex.1992). confronts with the issue reserved 1. This case us Co. v. Mktg. by this court in Diamond Shamrock &Ref. 578 (Seoond) Invasion of The Restatement Torts,

Genesis of Sec- of pri- tion 652E defines false invasion of cataloged Professor William L. Prosser vacy as follows: injuries inva- four distinct under the of gives publicity One who to a matter con- privacy (1) upon person’s intrusion — cerning places another the other be- to be left alone his or her own subject public fore in a false affairs, publicity given private informa- liability to the other for invasion of his person, appropriation tion about a of privacy, if person’s personality some element of the (a) light in which the other was use, commercial WilliaM placed highly would offensive to a PROSSER, L. Handbook of Law of Torts person, and reasonable 1955). These four variations of (b) knowledge the actor had of or acted in adopted by the tort were the Second Re- disregard falsity reckless as to the (Sec- statement of Torts. See Restatement publicized light in matter and the false ond) 652A of Torts placed. which the other would be recognize any Texas did not of the four 652E types of until our of invasion decision recognized by The tort has been (Tex. Atkinson, Billings v. S.W.2d appeals. of several Texas courts See Reeves 1973), category which involved the first of Am., 385, v. Western Co. N. 867 S.W.2d developed by Prosser 1993, (Tex.App. 396-97 Antonio no — San recognized by the Restatement: an in Mall, writ); v. La Plaza Mitre S.W.2d In trusion into the seclusion. Bill 752, 1993, (Tex.App. Corpus Christi — defendant, ings, telephone company denied); v. Brooks Fashion writ Mitre employee, placed tap plain had a wire on the Stores, Inc., 612, (Tex.App.— S.W.2d telephone ap tiffs residential line and had 1992, denied); Corpus Christi writ Wilhite v. parently plaintiffs personal tele listened to Co., 1, (Tex.App.— H.E. Butt 812 S.W.2d phone affording plain conversations. 1991, writ); Corpus v. Christi no Wavell relief, majority tiff we noted that Publishing Caller-Times 809 S.W.2d jurisdictions in the United States (Tex.App. Corpus Christi — independent cause of action for the inva denied); writ Diamond Shamrock &Ref. privacy, that “the sion held Mendez, Mktg. Co. v. 809 S.W.2d injury legal constitutes a for which a 1991), rev’d, (Tex.App. Antonio — San remedy granted.” will be Id. at 860. We Kerr, (Tex.1992); Boyles v. S.W.2d expressly recognized the have also second (Tex.App 806 S.W.2d 258-59 . —Texar type privacy right, right to “freedom 1991) (Tex.1993); kana rev’d 855 S.W.2d embarrassing pri disclosure Clarke v. Denton Found, vate facts.” Industrial South (Tex.App. writ Worth — Fort Bd., Post, Indus. Accident denied); Texas S.W.2d Covington v. Houston (Tex.1976), (Tex.App. 346-47 S.W.2d —Houston (1977).2 writ); Floyd Park no [14th Dist.] Although acknowledged the Prosser cate People, we 97-98 Cities S.W.2d Foundation, writ); gorization in Industrial we have no National (Tex.App.—Dallas Demeson, Bonding Agency never embraced nor the fourth 1983, writ); type (Tex.App. no and final of invasion of —Dallas (Tex. Snow, 222, 224 today. light” “false tort. We decline to do so Gill predicting widespread type privacy right, protecting future ac- York cases and 2. The third likeness, against appropriation tort). only reported of a name or ceptance Texas of this jurisprudence well established in the Kimbrough involving case this tort is v. Coca- Treece, Exploi- states. See James M. Commercial Cola/USA, (Tex.Civ. Names, Likenesses, and tation Personal Histo- n.r.e.). App. See also writ ref'd Busch, Inc., —Eastland ries, Pavesich TexX.Rev. v. Anheuser Benavidez Ins., England 122 Ga. 50 S.E. v. New law). Life (5th Cir.1989) (applying Texas (1905) (discussing Michigan and New writ); pattern pres on a fact no Moore v. based App. Worth — Fort claim); Enterprises, nothing B. Pierce Film than a defamation Charles ents more (Tex.Civ.App 55 N.Y.2d Arrington v. New York Times . —Texar n.r.e.) In all of these kana writ refd 434 N.E.2d N.Y.S.2d cert., eases, application for writ of error (1982), either Court, rejected was filed in this or the Court 787, (noting L.Ed.2d 994 “ser S.Ct. 74 application the with the notation “writ de recognition concern” that of false ious nied,” posture or the of the case was such cases); safeguards sidestep would for libel issue, necessary that it was not to reach the Teamsters, Yeager v. Local Int’l Bhd. of given any approval so that our was never to 669- Ohio St.3d 453 N.E.2d Also, holdings. federal of these several (“Under the facts of the instant interpreting permitted courts Texas law have case, compels us we find no rationale which light. of action for false Moore cause light’ theory recovery in adopt the ‘false (5th Co., Big Picture time.”); Ohio at this Falwell v. Penthouse Cir.1987); Magazine, v.Wood Hustler (W.D.Va. Int’l, Ltd., F.Supp. (5th Cir.1984), F.2d cert. de 1981) (“[t]he Virginia simply courts of do not nied, recognize common of ac such a law cause Flynt, Braun v. House, Inc., tion”); Mitchell v. Random 245,252 Cir.), F.2d cert. (5th Cir.1989) (“[we] according F.2d ly adopt Mississippi decline to for Mitchell’s Nevertheless, false remains leasts the Lab., light theory”)3; false Elm Medical Inc. recognized aspect and most controversial Gen., Inc., v. RKO 403 Mass. 532 N.E.2d privacy. Sanford, invasion of See Bruce (1989) (“The only 11.4.1 at 567 Libel ‘putting plaintiff[s] in a the assert is 1991) (“Of pri types Dean Prosser’s four light’. recognized This court not false has torts, vacy light’ gener the ‘false school has now.”); that tort not and does choose to do so elusive, ated the most criticism because of its Hoppe Corp., Wash.App. v. Hearst nature.”); amorphous Zim Diane Leenheer (Wash.Ct.App.1989) n. 5 P.2d merman, Privacy: Invasion of (‘We note that the trial court could have Failed, N.Y.U.L.Rev. properly light claim Hoppe’s dismissed (1989) (“the may wiser course for far, Washington on the basis that thus has light altogether”). states to eliminate false tort.”); recognized not the Zinda v. Louisi join Today, jurisdictions we those that do Corp., 149 ana Pac. Wis.2d 440 N.W.2d recognize priva the false invasion pri that Wisconsin’s cy action. Renwick v. News & Observer vacy provide statute “does not a cause of 310 N.C. 312 S.E.2d placing person action for eye”).4 public (1984) (“We expand 83 L.Ed.2d will not privacy recognized reject priva- the tort of invasion of We 1) jurisdiction light’ cy largely dupli- to include ‘false inva tort for two reasons: it privacy.”); rights recovery, particularly sions of Sullivan Pulitzer cates other 2) defamation; Broadcasting it lacks (Mo.1986) (refusing recognize procedural accompany the tort of limitations that ac- Jackson, (“It Young recognize cites at 80 is not The Dissent 572 So.2d the tort. 497 So.2d (Miss.1990), Bay and Prescott v. St. position regard- important for us to delineate our (Miss. Newspapers, Louis 497 So.2d ...”). ing recognition of false here 1986) proposition Mississippi for the has light. the tort of false 878 S.W. Waring 4. See also v. William Morrow & However, Young, 585 n. 2. 572 S.W.2d at (S.D.Tex.1993) ("The F.Supp. failure facts, public private dealt with the disclosure of recognize of the Texas Court to type the second of invasion of action same.”); leads this court to do the Maxwell v. catalogued by Young Prosser. The Court in cites (S.D.Tex.1993) Henry, F.Supp. having recognized Prescott as tort of false (“Texas However, law does not the tort of ‘false specifically the court in Prescott Mall, Mississippi light.’”); issue La 857 S.W.2d at 755. reserved the of whether would Plaza tion, defamation, 73.001 of the Texas unacceptably in- is defined Section

tions for thus Practice & Remedies Code as follows: already exists be- Civil creasing the tension that guarantees constitutional tween expressed in A libel is a defamation writ- and tort law. graphic or other form that tends to ten memory blacken the of the dead or that

Duplication of Causes of Action Other injure living person’s reputation tends to public thereby expose person action, as it has been de The false hatred, ridicule, contempt or or financial Restatement, recovery permits fined injury impeach any person’s honesty, toor injuries by publicity that unrea caused virtue, integrity, reputation pub- or to in a sonably places anyone defects of lish the natural (Seoond) public. before thereby expose person ha- Although explicitly § not re 652A. Torts ridicule, tred, injury. or financial definition, quired by most the Restatement jurisdictions, including (1986). the lower Texas § 73.001 & Rem.Code Tex.Civ.PraC. action, recognized the re Slander, defamation, courts that have spoken form of is quire statute, false if it is to be recog that a statement be by but has been not codified light cognizable under the false doctrine. defamatory “a at common law to be nized (false Clarke, light e.g., at 331 793 S.W.2d orally published party a third statement untrue statements about a action “concerns justification or excuse.” See Shear without (“evidence Gill, Hutton, Tucker, at 224 party”); 644 S.W.2d son Lehman support not a cause of action for false (Tex.App. Corpus will Christi S.W.2d — light we believe no false statements w.o.j.); because see also Restate writ dism’d (1977). Thus, publicized”); of fact were ever Machleder v. (Seoond) of Torts ment (2d Cir.1986), Diaz, cert. 801 F.2d defamatory must light, like false statements denied, S.Ct. The false be false in order to be actionable. (1987) (in Jersey, truth New L.Ed.2d overlaps some tort also action). See, defense to the false other, absolute recognized, privacy torts. better sensible, falsity requirement Jr., consider Kalven, Privacy Harry in Tort e.g., private facts” inva Wrong?, that the “revelation Brandéis Law —Were and Warren Contemp. purports grant relief tort Law & Probs. for the disclosure of true statements overlap of false (noting potential adversely plaintiff. Flynt affect the v. Dis appropriation); and Lerman Cir.1984) (2d trib. 745 F.2d recognize a false If we were to specifically alleged (asserting that “while not Texas, largely duplicate ex it would several libel, complaint, [plaintiffs] action [for in her action, particularly defama isting causes of statutory right for violation of Billings, 489 S.W.2d tion. As we observed a common appropriation law privacy interests at “some of the presents a classic false privacy] protection under such have been afforded cert, denied, 1054, 105 claim”), U.S. slander, theories as libel and traditional 85 L.Ed.2d seizure, eavesdropping wrongful search Furthermore, damages the elements invasions wiretapping, and other similar light ac recognized in false personal affairs that have been private into business and to those awarded for defa Recovery tions are similar individual.” for defamation of an principal element of actual mation. The requires of a false statement. the communication typically damages light claims is Rayzor, for false Corp H. 644 S.W.2d A. Belo writ, (Seoond) anguish, see Restatement ref d mental (Tex.App. Worth — Ft. n.r.e.) v. Hustler (“The 652H Wood recovery for qua non of sine falsehood”) Magazine, 736 F.2d ... is the existence of Cir.1984), cert. No. (quoting Dominion Branch Old Austin, Braun v. L.Ed.2d 777 Letter 418 S.Ct. Nat'l Assoc. Carriers (5th Cir.), 2770, 2781, Flynt, L.Ed.2d (1974)). Libel, defama which is written (1984), physical but illness Clarke Denton S.W.2d (Tex.App. harm to the commercial interests Worth — Fort recognized. denied) been L. have also See William (holding proceed writ could Prosser, Privacy, 48 statute of limitations under false when Cal.L.Rev. Donaldson, Annotation, Russell G. run); Covington for libel had v. Houston Post, (Tex.App.— —Defenses Remedies, 57 A.L.R. 4th writ) (holding Houston no [14th Dist.] essentially types These are of plaintiff proceed under when could damages sought in defamation actions. See run); statute of limitations for libel had §§ of ToRts Floyd People, v. Park Cities (1977); BRUCE Libel and PRIVA (because SanfoRD, photograph true and accurate 1991); § CY 11.4.1 at 431-54 Shearson interest, account of a matter of all Hutton, Lehman 922. Thus fail); liability Bonding theories of National all, many, injuries if redressed Demeson, Agency tort are also redressed (suit writ) (Tex.App. no — Dallas defamation. libel, brought under addition to false Snow,

The false light); cases considered Texas Gill v. appeals, writ) (court brought, courts were all or could (Tex.App. Worth — Fort brought, legal have been under another theo light held there was no relief for false be See, ry. Am., Reeves v. false; Western Co. N. cause statement was not there would (because 867 S.W.2d court limited defamation); likewise be no relief for Moore publication action under false Enter., B. Charles Pierce Film statements, brought action could have been (Tex.Civ.App. — \Texarkana slander); Mall, under Mitre v. La Plaza n.r.e.) (as defamation, writ ref d actions for (Tex.App. Corpus S.W.2d 755 & n. 3 recovery person court limits about whom — denied) (court Christi writ allowed published). false information is We see no proceed in its claim for false reason to a cause of action for false because fact issues existed over whether de privacy recovery when defamatory fendants statements were substantially duplicated by that tort is torts malice); whether defendant acted with Mitre already established in this State. Stores, Inc., v. Brooks Fashion (Tex.App. Corpus Christi Speech — Freedom of Considerations denied) (holding publi writ that defendant’s above, As tort discussed cation was actionable as both a false bears remarkable similarities defamation. defamation); and a Wil However, wholly the torts are not identical hite v. H.E. Butt S.W.2d for two reasons: defamation actions are writ) (Tex.App. Corpus Christi — subject require- procedural to a number of (suit brought as both false and defama ments to which invasion of actions tion); Wavell v. Caller-Times subject, publications are not certain Co., 809 (Tex.App. Corpus S.W.2d 633 — theory not a actionable under defamation denied) (holding Christi writ that news might be actionable under false Far paper publications alleged to constitute false persuading us these distinctions subject invasions of are to the justify tort, separate they we believe dem- protections publications alleged same as are adopting onstrate that defamatory); to be Diamond Shamrock Ref. unacceptably derogate con- this State would Mendez, Mktg. & Co. v. speech rights stitutional under both the (Tex.App. 1991), (plaintiff Antonio did — San Texas and the United States Constitution. claim) rev’d, pursue not Kerr, (Tex.1992); Boyles S.W.2d 1. Procedural and Substantive Differences 1991) (Tex.App. 806 S.W.2d 255 — Texarkana (Tex.1993) rev’d Actions for defamation in Texas are sub- (false brought ject procedural action could have been to numerous and substantive distress); example, govern- intentional infliction of emotional accounts of hurdles. public meetings dealing proceedings, light] mental the tort or as [of any public purpose, argu with a “reasonable sumed the existence of the action for apply and fair on of an official comment or criticism ment’s sake the statute of limitations privileged act” are under Texas Civil Prac for defamation actions to a claim for ‘false ”). Kapellas Kofman, light’ 73.002. tice & Remedies Code Section Cal.3d generally Cal.Rptr. not in defa Broadcasters are liable 459 P.2d publications); Gashgai parties. (privilege mation for broadcasts made third for truthful Leibowitz, (1st Cir.1983) 78.004 Tex.Cxv.PRAC. & Rem.Code (limitations). Zimmerman, supra, See also Qualified privileges against defamation exist Bacharach, at common law when a communication is nn. 16 & 21 Debra Ann author, Comment, Action in Texas: Its good recipi faith made Characterization, family Determination of person, ent or a third or one of their Limitations, members, sufficiently Applicable Statutes has an interest that is Sw. Donaldson, the communication. See Hollo L.J. affected Russell G. Ass’n, Annotation, way v. Texas Medical Priva Remedies, cy-Defenses (Tex.App. writ A.L.R. 4th [1st Dist.] — Houston denied). may A communication also be con comment e to As section ditionally privileged important if it affects an 652E of the reasons: generally interest. BRUCE publicity is also defamato- [w]hen the false supra, Sanford, (collecting at 701-94.1 libel ry arguable ... limitations of it is states). privilege fifty statutes from all long standing found desir- that have been Damages defamatory awarded for state able for action for defamation should may mitigated by ments be factors such as successfully by proceeding evaded correction, public apology, retraction. upon theory origin, in a different of later 73.003 Tex.Civ.Prac. & Rem.Code development of which the attention of Sanford, generally supra, at BRUCE to the the courts has not been directed (collecting 701-94.1 retraction statutes libel limitations. states). also thirty-three See from Restate (Second) 652E of ToRts 652E cmt. e ment of ToRts bring Permitting plaintiffs to cmt. e (1977) (listing possible other on limitations actions for false without the limits es action, including posting the defamation bond may inhibit tablished for defamation actions requirements proof special damages). permissible range. speech beyond the hand, purpose

These technical restrictions useful would serve to safe- On the other if guard speech. Every by separate these re freedom defa- be served permits imposed. As the court ob mation action that the law necessari- strictions are served in Renwick v. News & Observer Pub ly speech. Supreme inhibits free As the Co., lishing political speech respect Court stated with 310 N.C. 312 S.E.2d Sullivan, York cert. New Times v. in 376 U.S. 469 U.S. S.Ct. (1984): 710, 722, (1964), 11 L.Ed.2d 686 L.Ed.2d 121 S.Ct. is added to the field of libel is “[w]hatever the First Amendment limitations Given taken from the field of free debate.” While [New placed upon defamation actions compelling, less these same considerations vj York Times Sullivan upon false play private, non-political are also at in ex- [Time, invasion of actions Thus, pression. the defamation action has Hill, Inc. v.] we think that such additional speech narrowly been tailored to limit free as might required to make remedies as we possible. little as recognize should we available to invasion of claims are many jurisdictions pre have Courts recognition in justify not sufficient protection speech by holding their served jurisdiction inherently consti- of such actions to the same strictures as tutionally suspect claims for relief. v. Pulitzer defamation actions. See Sullivan Flynt Dis (Mo. Broadcasting also Lerman v. Id. 413. See at Cir.1984) (2d 1986) (“[A] trib. number of courts that have either 745 F.2d rationale, however, (“regardless [plaintiffs] persuade of whether cause of does not us to tort. action is cast in terms of libel or false protections app ... the same constitutional questionable remedy It is whether a NBC, Inc., ly5’); Berry v. 480 F.2d 431 non-defamatory speech should exist at all. (8th Cir.1973) (“[t]he problem is whether the Time, Hill, In Inc. v. 385 U.S. 87 S.Ct. can, plaintiff by suing for invasion of (1967), Supreme 17 L.Ed.2d 456 by-pass safeguards the various and limita plurality Court viewed with disfavor the re- grown up tions which have around the accu nondefamatory striction of statements defamation5’); sation of Miami Herald Pub New York statute: Tomillo, lishing v.Co. 418 U.S. grave impair- We create risk of serious 2831, 2839-40, S.Ct. indispensable ment of the service of a free (“the go newspa choice of material to into a press society if a free we saddle the per, and the decisions made as to limitations press impossible verify- with the burden of paper, certainty on the size and content of to a the facts associated name, public person’s picture treatment of news articles with a public issues and offi portrait, particularly fair related to non- cials—whether or unfair —constitutes the defamatory matter. exercise of an judg editorial control and ment.”); Waterbury Republi Goodrich (emphasis at S.Ct. can-American, Inc., added).5 188 Conn. 448 A.2d (1982) (“defendant 1317, 1331 was constitu Time, Hill, 374, 387-90, tionally protected liability for a false 534, 541-43, 17 L.Ed.2d 456 the privacy, regardless of his United States Court has held that may place plaintiff decision to omit facts that the tort of false is consistent with First under a scrutiny.”); less harsh Ma provided Amendment freedoms there is a Diaz, Cir.1986), chleder v. malice, finding knowledge of actual 1088, 107 falsity, disregard or of reckless of the truth. (1987) (“[A] rule that would hold City Publishing See also Cantrell v. Forest a media broadcasting defendant liable for 469- 71, 42 truthful L.Ed.2d 419. These cases have statements and action because it been vastly expanding category criticized as failed to include might additional facts protected by First Amendment have cast the in a more favorable Zimmerman, supra, freedoms. balanced ... violates the First Amend speech at ment”). N.Y.U.L.Rev. 364. The class of Thus, speech we decline to restrict only restricted defamation is that which any in beyond manner existing our tort law. light may brought defames. subject any untruth to which the amatory Speech Non-Def speech umbrage. the takes Editors for the theory, In may pro- the false action may guard against media defamation be- remedy non-defamatory vide a for certain ing alert to facts which tend to diminish speech against may which there be no other reputation; light, any under false fact in the remedy in innocuous, (Sec- tort law. See story, seemingly no matter how 652E, ond) may prove liability.6 cmt. b This to be the basis for of TORTS dissent, again arguing necessity 5. The Court cast doubt on recov- 6. The for the for the ery non-defamatory speech for false in Hustler light, gives example person tort of false as an a Falwell, Magazine v. erroneously philosoph- who is identified with The case centered on a position subject ical with which the does not parotic depiction and offensive of Rev. Falwell theory effectively believe in. Such a would elim- appeared Magazine. jury that in Hustler A photographic coverage protests, inate for fear $100,000 damages awarded Falwell in actual for person that a in the crowd who does not believe distress, the intentional plus infliction of emotional bring in the cause would be entitled to suit for $100,000 punitive damages. an additional Supreme impression photograph creates. reversed, holding Court The that .this application illegitimate of the tort constituted an magazine's speech effort to restrict free 50-51, rights. Id. at 108 S.Ct. at 879. HIGHTOWER, joined by Justice an not as Justice The Restatement adds element DOGGETT, and Justice Justice GAMMAGE defamation, requirement with sociated SPECTOR, dissenting. subject in places the the statement “highly to the reason offensive” agree propositions I several stated with First, agree I that Texas contin- person. distinction fails to draw the court. able for viola- a cause of action ues reasonably lawful and clear lines between there is an right of the when tion conduct, “A law forbid unlawful however. intrusion into an individual’s seclusion vague ding requiring conduct terms so disclosure of embar- when there is intelligence must neces that men of common Second, rassing private agree I facts. sarily guess meaning and differ as to at its publications that do not constitute certain application process.” Baggett due its violates Third, may constitute Bullitt, 1316, 12 that, privacy, we agree I in the name of Maga Hustler see also ignore speech rights under either cannot Falwell, 46, 108 zine the Texas or the United States Constitution. (1988) (classification L.Ed.2d cannot, however, agree I with this court’s inflic “outrageous” for suits intentional reject tort of false inva- decision to provide a does not tion of emotional distress privacy. standard, jury allow meaningful and would right privacy is “the of an right jurors’ damages impose on the basis alone, to live a life of to be left individual views). tastes or seclusion, pub- from unwarranted to be free Atkinson, Billings licity.” E.g. Thus, uncertainty knowing what of not (Tex.1973) Right (citing 77 C.J.S. subject speaker speech may or writer 1); England Pavesich v. New Life chilling liability unacceptable would have 68, 71 122 Ga. 50 S.E. Ins. liability speech. Such effect on freedom alone (stating legal to be let incongruent high priority this state that there Roman times and has existed since placed expression. Dav has on freedom attracting at- punishments for were ancient (Tex.1992). Garcia, 4, 7 enport v. others); Hun- Gormley, Ken One tention to Privacy, dred Years Wis.L.Rev. recently, recognized that Only this Court protection speech provision aspects our free some and tort law individuality in constitutional the First Amendment. See broader than law, swath of common come from the same 8; Davenport, Fort Worth liberty); individual designed to assure both Walker, Telegram v. Star Cooley Cooley, on Toets M. Thomas (Tex.1992). Davenport Fort Worth 1888); Re- also Diamond Shamrock Article I Sec- Telegram, we construed Star Mendez, fining Mktg. & Co. to have 8 of the Texas Constitution tion (Tex.1992) J., (Hightower, concur- vitality the federal consti- independent (recognizing that the of individual ring) tution, impose higher even standards and to great, implicit among general, privacy is right restrict on court orders which liberty). Indepen- principles of and essential speech. property, rights of the common law dent contract, integrity, reputation, physical balance, marginal to be benefit On privacy exists and an recovery against non- by permitting achieved a cause of action. right gives rise to by any ex- defamatory speech not addressed right em- at 860. The Billings, 489 S.W.2d probable isting outweighed society that a civilized bodies the esteem cases, and, chilling on in some effect dignity, in- personal holds for the values press, that would result on freedom of the Frank J. of selfhood. tegrity, and sense recognition tort. Cavico, Private in the Invasion of opinion, we expressed this the reasons and Ethical Tortious Employment Sector: 1263, 1265 recognize the tort expressly Aspects, decline to Hous.L.Rev. right that the court scope of this It is the 585 unduly today. Texas, dating narrows It is the violation of of action in cause back for over for which the court refuses to allow decade, Snow, 222, see Gill v. 644 S.W.2d remedy. complete writ);1 1982, (Tex.App. 224 no Worth — Fort however, rejects majority the court a clear The court concedes that a number rule,2 joining minority supreme courts have treated false a viable of one state (Miss. 1986)”); Eastman, Sys., Hamberger 1. See also Maewal v. 868 79 Adventist Health v. 106 886, 107, 239, (1964); (Tex.App &888 894 Worth N.H. 206 A.2d 240-241 Devlin . —Fort 1993, denied); Greiner, 446, 380, N.J.Super. writ Reeves v. Western Co. N. v. 147 371 A.2d Am., 385, (Tex.App. (1977); 867 S.W.2d Montgomery Larragoite, 396-97 388-89 Ward v. — San 1993, requested); 383, 399, (1970); Antonio Mall, writ Mitre v. La Plaza 81 N.M. 467 P.2d 401 Grus 752, Co., (Tex.App. Corpus 775, 857 S.W.2d 755 Publishing chus v. F.2d Curtis 342 776 — 1993, denied); Christi (10th 1965) (New law); writ Mitre v. Brooks Fash Cir. Mexico v. Tollefson Stores, Inc., 612, (Tex. Price, 398, 990, (1967); ion 840 S.W.2d 621-23 247 Or. 430 P.2d 991-92 1992, denied); App. Corpus Norban, Christi writ 94, 476, Wavell Bennett v. 396 Pa. 151 A.2d — Co., 633, v. Caller-Times Pub. 809 S.W.2d 634-36 (1959); 477-79 Todd v. South Carolina Farm 1991, denied); (Tex.App. Corpus Christi Co., writ 284, Bureau Mut. Ins. 276 S.C. 278 S.E.2d — Kerr, 255, Boyles (Tex. v. 806 S.W.2d 258-59 607, (1981); Montgomery Shape, 610 Ward v. 286 1991), App. grounds, rev’d on other 806, (S.D.1979); Crump Beckley — Texarkana N.W.2d 808 v. (Tex.1993); 855 S.W.2d 593 Clarke v. Denton Inc., 699, 70, Newspapers, 173 W.Va. 320 S.E.2d Co., 329, Publishing (Tex.App.— 793 S.W.2d 331 (1983); Assocs., 85 McCammon & Inc. v. 1990, denied); Covington Fort Worth writ v. Co., Inc., Broadcasting McGraw-Hill 716 P.2d Post, 345, (Tex.App.— Houston 743 S.W.2d 347 490, (Colo.Ct.App.1986); 492 Thomason v. 1987, writ); Floyd [14th Houston Dist.] no v. Times-Journal, Inc., 551, (Ga.Ct.App.1989, 379 S.E.2d 554 96, People, (Tex.App.— Park Cities 97 Communications, denied); t. Cox cer 1985, writ); Dallas Moore v. Charles B. Pierce Lowe, 812, 384, Ga.App. 173 328 S.E.2d Enters., 489, (Tex.Civ. Film 490 denied), denied, (Ga.Ct.App., 386 cert. cert. 1979, n.r.e.); App. writ ref'd Mc 982, 388, — Texarkana (1985); U.S. 106 S.Ct. 88 L.Ed.2d 341 Co., Lean v. International Harvester 817 F.2d Publications, Inc., Group Pierson v. News 1214, (5th Cir.1987); 1219-20 Faloona v. Hustler 635, (S.D.Ga.1982); F.Supp. Tooley v. Canal Inc., 1000, Magazine, (5th 799 F.2d 1005-07 (L Motors, Inc., 453, a.Ct.App. 296 So.2d 454-55 Cir.1986), denied, 1088, cert. 479 U.S. 107 S.Ct. 1974); 1127, Rouly Corp., v. Enserch 835 F.2d 1295, (1987); 94 L.Ed.2d 151 Wood v. Hustler (5th Cir.1988) (Louisiana law); Allen v. Cir.1984), Inc., 1084, (5th Magazine, 736 F.2d 642, Corp., Md.App. Bethlehem Steel 547 A.2d denied, 1107, 783, rt. 469 U.S. 105 S.Ct. ce 1105, denied); (Md.Ct.Spec.App.1988, cert. (1985); Flynt, 83 L.Ed.2d 777 Braun v. 726 F.2d 697, Lawrence v. A.S. Abell 299 Md. 475 A.2d Cir.1984), 245, denied, 252-53 rt. ce 448, 1984); (Md.Ct.Spec.App. 450-51 Interna 883, 252, (1984); 105 S.Ct. 83 L.Ed.2d 189 Ritz Garner, 187, F.Supp. tional Union v. News, Inc., Weekly F.Supp. mann v. World (M.D.Tenn.1985). (N.D.Tex.1985); Justice v. Belo Several states have not decided whether Broadcasting Corp., F.Supp. action will be viable. See Elm Medical Lab. v. (N.D.Tex.1979). Gen., RKO 403 Mass. 532 N.E.2d (1989) (briefly noting that it has not Servs., Inc., Phillips Smalley 2. See v. Maintenance light); Fox Tree v. Harte-Hanks Communi (Ala. 1983); 435 So.2d Godbehere v. Inc., cations, 398 Mass. 501 N.E.2d Newspapers, Phoenix 162 Ariz. (Mass.1986) (putting deciding off whether to (1989); P.2d Florida Co. v. tort); Fletcher, adopt Broadcasting Sullivan v. (Fla.1976), Pulitzer 340 So.2d cert. (Mo.1986) (not denied, de 97 S.Ct. 53 L.Ed.2d tort); (1977); ciding Henry Bank, whether to denominate the Peterson v. Idaho First Nat'l (1961); T.V. & Radio 83 Idaho 367 P.2d Taft Levin, (Mo.Ct.App.1989) (stating Leopold the case lacked 45 Ill.2d 259 N.E.2d meeting Douglas facts the "invitation extended in Magazine, [Sulli v. Hustler ”); (7th Cir.1985) (Illi recognition Arrington ] van for of the tort.... Times, law), York nois cert. New 55 N.Y.2d 449 N.Y.S.2d Rinsley Fryd 434 N.E.2d man, (Kan. issue), 221 Kan. 559 P.2d that it did not reach the 1977); Pratt, Estate Berthiaume v. A.2d 792, (Me.1976); Brown, 20, 369, Yeager 794-95 Beaumont v. 401 v. Local Union 6 Ohio St.3d 371- 80, (1977); (Ohio 1983) (stating Mich. 257 N.W.2d 522 v. Wom 453 N.E.2d 669-70 Dietz TV, Mich.App. etco W. Mich. 160 407 that the of facts the case did not incline it to (Ct.1987); Jackson, tort); Young adopt N.W.2d 655-56 v. Eastwood v. Cascade Broadcast (Miss.1990) So.2d that 106 Wash.2d 722 P.2d (1986) issue); "recognized right (reserving it has a compare Kapellas of action in at least (1) light [citing] Kofman, three Cal.Rptr. contexts: ... false Prescott 1 Cal.3d Inc., Bay Newspapers, (dismissing St. Louis 497 So.2d P.2d 921 n. 16 papers, rejecting light inva 173 W.Va. 320 S.E.2d squarely court false proffers PROSSER, two privacy.3 The court L. Law of William Torts 1971); see also Diane Leenheer rationales its decision to sever Light Zimmerman, False Invasion Priva privacy complements. from its branch of of Failed, cy: Light light largely The argues court first that false The N.Y.U.L.Rev. that false duplicates example, defamation and second 367 n. 16 & 396 unduly increases the tensions between falsely reports that an individu article which only speech law. Not do these tort and free from a serious disease such as al suffers other, arguments strain each but defamatory not be but could cancer would they simply persuasive. are not comprise of action for false a cause Explaining Justify Schwartz, Gary T. con- That the substance of communications Light ing A Tort False Invasion Limited of stituting usually defamation will also consti- Privacy, Case W.Res.L.Rev. not make the two torts tute false does (1991).4 scope conduct coextensive. The of actionable torts, and the torts are differs between the Second, protect different inter- the torts designed protect different interests. to rep- preserves ests. Defamation individuals’ interests, First, notes, light invasion of rightly as do utation but false the court commentators, right of privacy, are as the other branches of the courts and there which, safeguards sensitivities privacy, on their con individuals’ communications based tent, people and believe about defamatory may be false about what know are not but Newspa- E.g. v. Phoenix Godbehere they them. privacy violations of because are Hill, Time, pers, P.2d E.g., Inc. v. 162 Ariz. highly offensive. 87; Crump, 540-41, 17 Frank J. 320 S.E.2d U.S. 384-85 n. Privacy Beckley in the Private Cavico, Crump v. News Invasion defamation) right injury overlapped in a case of willful invasion claim that with subjective. privacy essentially Corp. & In mental with Fibreboard Accident Hartford (Tex.1973) Cal.App.4th Cal.Rptr.2d Compare dent. 376, Kalven, Jr., Privacy (Cal.Ct.App.1993) (including Harry in Tort Law— with Wrong?, & wrongs comprising Were Brandéis 31 L. in the cluster of inva Warren and Con- (1966) (stating that "tort temp.Probs. right privacy under the common sions of the law). right privacy Virginia protect seems Although law’s effort to the court counts as mistake”) state, to man, and Diane Leenheer Zimmer minority Virginia me has not addressed rule Light Privacy: False Invasion the issue. Failed, 64 N.Y.U.L.Rev. (concluding retained if it that false could be supreme reject only court to 3. The other state requires proof harms—that is more of non-trivial privacy in its entire tort of false distress). than mental ty News & North Carolina. See Renwick v. Publishing N.C. Observer (N.C.), S.E.2d wrongly suggests that innocuous and 4. The court Not 83 L.Ed.2d 121 may provide the basis for false accidental errors See, only for "em has Renwick been criticized light liability. e.g., (Second) Restatement ploy[ing] logic” (requiring flawed in its refusal to that the 652E & cmt. c Torts Walter highly the tort of false a reasonable offensive to Fisher, Jr., Note, only stating applies v. News & Observ person D. Renwick the tort Time, Rejects major misrepresentations); er Co.: North Carolina also Tort, 534, 541-43, Hill, malice, (1985), (1967) (requiring but the Renwick actual N.C.L.Rev. conduct, light). casting a basis for false approach doubt on the need for not accidental is one Renwick, on offensive behavior general. Nor should the tort's focus recognition. prevent (speculating harm its that the conditions and emotional S.E.2d at 413 Cf. (1965) (recog § argue almost which led Warren and Brandéis to distress nizing of emotional century ago separate intentional infliction for a tort of invasion of subsided). outrageous requires con misplaces extreme court its which have duct); Twyman Twyman, disagree opinions those who reliance on the (Tex. 1993) (adopting intentional inflic principles expressed Billings v. Atkin in the Re warranting as outlined tion of emotional distress there is a son—that arguments rejecting vagueness be protection law and that dam statement under the common constantly requires jurors to de suffering cause the law ages are recoverable without for mental reasonable). showing injury cide what is other because the need of Atkinson, Employment Billings Sector: Tortious and Ethical (Tex.1973) Privacy Aspects, (quoting n. 42 62 Am.JuR.2d 30 Hous.L.Rev. 683). 4,§ (1993); Lasswell, Comment, Bryan R. In De p. Light: Why Light False False Must fense of That, cases, in some both torts allow men- Action, Remain A Viable Cause of anguish damages tal from does not detract 149, 156, 163 (1993); & 172 Ken S.Tex.L.Rev. differing protections. these Godbehere Cf. Gormley, Privacy, One Hundred Years of Newspapers, Phoenix 162 Ariz. (stating pri 1992 Wis.L.Rev. that (finding although P.2d vacy as a tort notion in reflects instinct actions for intentional infliction of emotional preserve the common law to an individual’s privacy compensate distress and invasion of Gibson, personality); Jerry inviolate A. The damages, similar there is no reason to refuse Developing Liability Law Tort Nom- for torts). example, both men- Harm,: Physical A Guide the Texas for anguish damages tal are available in suits Maey’s Practitioner, 18 St. L.J. malpractice, medical certain violations of the (1987); Schwartz, Gary Explaining T. Act, Deceptive personal Trade Practices Justifying Light A Limited Tort False injury, but that does not mean that the torts Privacy, Invasion 41 Case W.Res.L.Rev. duplicate they each other or the interests (1991); Nimmer, Melville B. serve. Right Speak Times to Time: First Furthermore, scopes of the torts differ Theory Applied Amendment to Libel and respect publicity required to the level of Misapplied Privacy, 56 Cal.L.Rev. for the cause of action to arise. False (1968); see Gruschus v. Curtis Publish requires significantly publication broader (10th Cir.1965) 342 F.2d than only does defamation. Defamation re (noting damage reputation is relevant quires individual, publication single to a but to suits for libel but not to suits for invasion light requires widespread dissemina privacy); Fisher, Jr., Note, Walter D. E.g. Crump Beckley Newspapers, tion. Remvick v. Publishing News & Observer Co.: W.Va. S.E.2d Rejects North Carolina Light the False In (1983); Lasswell, Bryan Comment, R. In De Tort, Privacy vasion 63 N.C.L.Rev. Light: Why Light False False Must fense of generally Diane Leenheer Action, A Remain Viable Cause Zimmerman, Light Invasion Priva Walter D. S.Tex.L.Rev. Failed, cy: N.Y.U.L.Rev. Fisher, Jr., Note, Renwick v. News & Ob server Co.: North Carolina Re jects the False protection The need for of individual sensi- Tort, n. N.C.L.Rev. tivity already recognized by has been this compare court: (stating publication that the re complexity intensity [T]he increased of quirement only in requires dis modern civilization development and the party) semination to a third with Moore spiritual man’s sensibilities have rendered Big Picture 828 F.2d Cir. publicity man more sensitive to and have 1987) (noting light requires that false wide increased his need of while the And, spread publicity). the court could re great technological improvements in the quire case means of communication have more and higher proof meet a burden of than in defa subjected pri- more the intimacies of his Diaz, mation. See Machleder v. exploitation by pan- vate life to those (2d Cir.1986) who that the burden of prurient der to commercialism and to proof convincing clear curiosity. legally idle A enforceable only preponderance evidence but proper protec- defamation), deemed to be a evidence type tion of encroachment U.S.

upon personality of the individual. all, Atkinson, many, wiretapping Billings if not context. The court’s conclusion that (Tex.1973). injuries by light redressed by plainly defamation is tort are redressed only explanation why The court’s it will logic. light wrong as a matter of That false overlap in arena tolerate no this is that free injuries by covers some of the covered defa- rights implicated pro- speech are because the way that attending lacking. mation in no leads to the conclusion cedures defamation are injuries weigh and covers most of the cov- Rather than assess the interests right5 any proce- in each and add at stake ered necessary to effectuate an even bal- dures Furthermore, itself, overlap, by is no rea- rights, simply ance of the the court concludes reject to a cause of action for false son privacy and that false invasion Texas, privacy. example, For invasion of speech cannot coexist.6 a citizen who feels cheated a financial questions constitutional via The court variety transaction has a of choices for a privacy in bility of false invasion of a action, fraud, including cause of a claim for cursory unsatisfactory analysis. For ex Deceptive violation of the Trade Practices ample, court fails to address the United Act, warranty, or a breach of combination acceptance States Court’s of false Moreover, any and all of these claims. al- privacy long plain invasion of so as the though such as actions traditional theories proves tiff that acted with the defendant protected eavesdropping wiretapping for is, knowledge of actual malice —that with private into individuals from invasions their falsity disregard or in for the truth. reckless affairs, personal availability Time, Hill, 374, 387-90, business and Inc. v. U.S. (ex (1967) 534, 541-43, preclude the court of such actions did S.Ct. 17 L.Ed.2d 456 noting adopting plaining in the the standard and that “consti from illogical recognize privacy any patently 5. define societal benefit in would be to The court fails to public private falsehoods that cause harm. The ben- deliberate action disclosure of facts while for Time, Hill, speech efit to such is unclear. refusing claim” because to 374, 390, 534, 543, S.Ct. 17 L.Ed.2d results). it would lead to anomalous The court Louisiana, (1967) (quoting Garrison v. apparently puts premium in de on falsehood 209, 216, 64, 75, U.S. 13 L.Ed.2d 125 light injuries go ciding will unreme- that false (1964)); Hampshire, Chaplinsky v. New Nimmer, Right B. The to died. See Melville 766, 769, 568, 572, 62 S.Ct. 86 L.Ed. 1031 Speak Times to Time: First Amendment from Nimmer, Right Speak Melville B. TheoryApplied Misapplied Privacy, to Libel Theory Times to Time: First Amendment (1968). Cal.L.Rev. Misapplied Privacy, Applied to Libel and (arguing knowing that Cal.L.Rev. pri assumption invasion of hardly dialogue to democratic lies contribute vacy bypass defamation re enables regard necessary hard to as a function of self- are Schwartz, Gary largely strictions is incorrect. T. Schwartz, fulfillment); Explain- Gary see also T. Justifying Explaining A Limited Tort False Justifying A Limited Tort and. Privacy, Light Invasion Case W.Res.L.Rev. Privacy, 41 Invasion of Case W.Res.L.Rev. concedes, the court most As (1991) (describing the tort as a 907 & 914-15 jurisdictions privacy and free balance indirectly vindicating useful device for readers’ safeguards. rights by enacting procedural journals misrepresentation claims of example, substantial truth is a defense to false explaining knowingly running false stories and privacy, defeating arguments improve information that false suits market have omitted or added certain that editors should letting of reason to doubt the readers know Diaz, story. facts to a Machleder v. story pattern accuracy of stories in a of a (2d Cir.1986), journal); particular Posner, Richard A. Econom- cf. also 1986) (arguing Analysis Law ic Tornillo, Miami Herald Co. positive makes a investment in misinfor- the liar wasteful). socially mation which is Waterbury Re Goodrich Furthermore, the court makes no effort to ad publican-American, Conn. inconsistency allowing patent suit dress the course, And, A.2d private disclosure of facts as an inva requiring court could address this concern untrue but not for disclosure of Fisher, Note, safeguards in defamation cases Jr., Walter D. Renwick facts. See apply cases. also in false Publishing Co.: North Carolina News & Observer 652F, See, Tort, §§ e.g., Rejects the False Invasion of (dealing privileges). (noting “it 652G 63 N.C.L.Rev. guarantees rights recognized tutional can Id. tolerate sanctions ual the law. Our signifi justice system calculated falsehood without us confident allows to remain function”); impairment cant of their essential City Publishing see also Cantrell Forest judges pass honest trial to and fearless 469- upon question the first the of law instance (reaffirming L.Ed.2d the right of in each to the existence the Time). Application standard set forth of case, subject are to review whose decisions the adequately Time standard secures feder resort, last with fair the court of and rights.7 Schwartz, speech Gary al free T. ques- impartial juries pass upon and to the

Explaining Justifying and A Limited Tort involved, tions of fact and the dam- assess Privacy, False Case of of ages recovery, in the of a whose event (1991)(noting that the W.Res.L.Rev. is, law, our verdict under in all eases sub- intentional or reckless falsehood test essen ject supervision scrutiny and the trial tially spectre the eliminates of unconstitu judge, legal within the limits of a discre- tionality); Bryan Lasswell, Comment, R. tion, there be no need more fear the Light: Why False Defense of right privacy of will of be the occasion Action, Must A Viable Remain Cause unjustifiable litigation, oppression, (1993) (stating S.Tex.L.Rev. wrong many than that the existence criticisms of false other rights bring in the law would about privacy Time); are not valid in such results. Welch, Inc., Gertz v. Robert Id. (1974) (explaining that the actual malice stan I respectfully dissent. powerful

dard administers antidote to the self-censorship

inducement to media and that

it correspondingly price exacts a high subjected injury who are but who standard).

will not be able surmount the abiding by

Instead of the decisions of the issue, federal courts on the first amendment K.D.F., Partnership, a Kansas General the court on relies a lone commentator in Employees Kansas Public Retirement implying United States System, Associates, Inc., and Pacholder Court analysis. failed in its constitutional Relators, That proper cannot role for this court. right right speak coexisted, have each must be REX, James L. Honorable respect enforced with due for the other. Respondent. Judge, England Pavesich v. New Ins. Life No. D-4340. Ga. recog- 50 S.E. That nizing right perplexing involves Supreme Court of Texas. questions to determine where it ends and the Argued Dec. 1993. rights begin others of the is a poor not recognizing right excuse for Decided June 1994. privacy. may Id. at Cases arise near marking border of another individual public, but this is true of other individ- out, correctly points proceeding).

7. The court and I whole that the malice I believe actual heartedly agree, guarantees comports that the Texas constitution has standard with these broad independent vitality providing damag remedy from the federal constitution in the context of simply reject speech. and that affords its Texas citizens broader free and false Rather than speech rights guaran than minimum federal I branch Davenport approach balancing tees of the First Amendment. See would favor of these each Garcia, (Tex. orig. important rights.

Case Details

Case Name: Cain v. Hearst Corp.

Court Name: Texas Supreme Court

Date Published: Jun 22, 1994

Citation: 878 S.W.2d 577

Docket Number: D-4171

Court Abbreviation: Tex.