Denver Publishing Co. v. Bueno

regarding presence mand to the trial court Ryder's letter for consideration of out of parental issues, alienation.8 any remaining including questions

attorney fees.

IV. Justice MARTINEZ and Justice 1817-102, Citing section 5 C.R.S. BENDER participate. do not granted the defendant's Mo- the trial court Attorney's concluding that the tion for Fees

plaintiff's in this case were substan- claims frivolous, vexatious,

tially groundless, factually. plaintiff legally and

both attorney appealed trial court's award

her attorney to the court of

of costs and fees

appeals. concluding the defen- After duty care to the dant owed The DENVER PUBLISHING COMPANY arising letter concern- out of the defendant's Rocky News, Mountain alienation, d/b/a presence parental ing the Petitioner, appeals plain- court of determined frivolous, substantially tiffs claim was not v. meaning groundless, or vexatious within the ("Eddie") Manuel Edward Ryder, of section 18-27-102. Mitchell v. BUENO,Respondent. (Colo.App.2000). Because it P.3d determined that the trial court erred No. 01SC386. awarding attorney on costs and fees Colorado, Supreme Court of claim and the trial court's order did because En Banc. separate relating fees to that claim from not claims, originating plaintiff's from other fees Sept. 2002. appeals the court of concluded that the court * Rehearing Denied Oct. 2002. attorney should revisit the entire fees issue. that, Id. It instructed if the trial court de- attorney

termined that an fees award was

appropriate, the trial court should make ex-

press findings pertaining fac- to the relevant

tors identified section 18-17-108. Id. party sought

Neither certiorari on the is- attorney

sue of the trial court's award of Accordingly, appeals judg-

fees. the court of reversing attorney remanding

ment Therefore, remand,

fees order stands. on any

the trial court will attor- need address

ney opinion. fees of our conclusion, ap- we reverse the court of

peals' holding affirm trial court's summary judgment

order of and dismissal on

all return claims. We this case the court of the trial court for reinstatement dismissing and for re-

order those claims * MULLARKEY, MARTINEZ Chief Justice Justice we certiorari, In terms on questions answering questions negative. one and two in the grant petition. and Justice RICE would resolution, we Because of need reach the remaining granted issues on which we certiorari.

Publishing Company properly was submitted contrary, jury. we now decline To tort, concluding that it is recognize the in in both highly duplicative of defamation Fur protected and conduct averted. terests ther, subjective component of the we find the spectre chilling of a raises the tort First Amendment freedoms. effect on appeals the court of therefore reverse join jurisdictions that do not those privacy tort. light as a viable invasion of to the court of We remand this case cross- of Eddie Bueno's for consideration of his appeal trial court's dismissal of the claim.

I. Facts Company, {/h/a/ Publishing The Denver (the News), published Rocky News Mountain four-page, thirteen-column article with Biggest Crime bold headline: "Denver's Carnahan, Biggest Family." Ann Denver's News, Rocky Aug. Fomily, Mountain Crime 28, 1994, at 20A. Bueno sued the News and LLP, Flink, Hostetler, Mare D. Baker & Carnahan, contending story Ann defamed Hostetler, LLP, Denver, Colorado, Baker & essence, privacy.1 In he him and invaded his Sanford, Brown, Bruce D. Wash- Bruce W. him in argued painted that the article a false D.C., Attorneys Petitioner. ington, for having propensities, like light as criminal Castle, P.C., Castle, Roger T. Roger T. many siblings. of his Colorado, Denver, Attorneys Respondent. "family story's page depicted a first LLP, Benson, Kel- Thomas B. Faegre & tree," photo the center of which contained a Zansberg, Christopher P. ley, D. Steven wedding Della and Pete Bueno on their Colorado, Beall, Denver, Amici Curiae day Mug-shot style photos of their Association; Colorado Press Colorado parents' pho- eighteen children encircled the Association; Society of Profes- Broadcasters to; captions each of the Bueno summarized Newspaper Associa- sional Journalists misfortunes, misdeeds, and, siblings' where tion of America. caption un- applicable, criminal records. The read, "EDDIE, photo Bueno's 55 Oldest der Opinion delivered Justice KOURLIS children." In the first edition of the Bueno the Court. published, caption paper to be youngest photo brother's whether under Bueno's this case we address With "FREDDIE, read, Only Bueno brother permits plaintiff to sue for the Colorado stayed Living in the privacy: a cause who out of trouble. light invasion of tort of false changed caption publicity that unrea Midwest." Defendants arising out of of action read, "Freddie, in a later edition to sonably places person in a false another Living in Youngest Pub Bueno child. the Mid- public. In Bueno v. Denver before the (Colo.App.2000),the west." The lishing 32 P.3d 491 revised version omitted the lan- guage, "Only stay out of question affir brother to trouble." appeals answered that court of declared, first-page subtitle "15 matively, ruling plaintiff Eddie Bueno's The article's (Bueno) against the Denver of Pete and Della Bueno's 18 children light claim subject pre-trial and are not the alleged negligence and his wife were dismissed 1. Bueno also consortium, appeal. of this those claims sued for loss of dren, ultimately interviewing records, big- seven of them. making the clan Denver's arrest family." twenty-five other attempted to gest crime Some Three times she contact Eddie Bueno, but he did not return her calls. interspersed throughout the arti- statements claims, among the basis of Bueno's cle form the News Carnahan and insist them: article makes no false statements about Bue- First, younger they argue "stay of siblings lure into life no. that he did not Older this, they point of For article's third out trouble." headline on the [a crime possession appears "arrest card" in their pagel. police run-in with to indicate Bueno had a 40s Bueno brothers are their The older teenager. charges, when he was a No con They're prison, but now. out of and 50s victions, or other ramifications resulted from younger will be in their brothers most of disputes incident and Bueno the card's long long, time. for trial, authenticity. judge At the ruled the Joey help look at his older broth- can't but any purpose, arrest card inadmissible and They're prison out of ers who robbed. the court of affirmed.2 now. points portion further The News out of waking up younger brothers recall The any possible the article it contends rectifies their many nights at or 8 am. when misunderstanding Bueno: vis-a-vis Eddie stumbled home drunk. older brothers Freddie, Eddie, youngest, and jail, boys up in Della ended Whenever oldest, boys are the two Bueno who Bueno bailed them out. stayed have out of trouble. like all the Buenos are destined "It seems Freddie attributes his clean record to criminals," nothing said. David to be relationship with his his close mother. Of sibling.] is a Bueno [David boys, all the Eddie had the closest relation- Bueno, fifty-five, now left his home Eddie ship to their father. years had was thirteen old and has when he page appear on the last of These sentences family mem- virtually contact with other no article, paragraphs seven from the end. present since then. He married his bers twenty-one, they three age and wife History II. Procedural children, their all married with families of News, asserting four Bueno sued years in the own. Eddie Bueno served six action, compensatory puni- plus of and causes Army, departing an Hon- States United alleged: 1. of damages. tive He employment Discharge. His current orable light; him in 2. placing a false City began twenty-five years ago with the by public of disclosure County maintenance of Denver's vehicle (namely, photo- private facts disclosure of his way up to department. He has worked his him graph as the oldest and identification holds, supervisor. position he now center family"); biggest 8. child of "Denver's crime in his no involvement whatsoever He had (false per se statements libel activities, did he seek siblings' criminal nor that Bueno had himself and characterization generally. Quite the con- publicity in his life activity); negli- engaged in criminal kept trary, purposefully secret Eddie Bueno gence (by identifying him as a member of a family the fact from most of his friends family identifying him as crime someone other, more notori- that he was related crime). trial, Before engaged had who ous, Bueno children. summary judgment granted trial court negligence favor the News on the claims of reporter News worked on the giving publicity to privacy: nu- and invasion of story for six months. She interviewed claim, the court private the latter and re- facts. On merous law enforcement officials portions of the article police department records. determined court and viewed "true," such as referring to Bueno that were attempted surviving all chil- to contact She evidentiary appeal final the rendered hear sought review of that rul- 2. Defendants certiorari appeals' affirmation of the trial court's Accordingly, court of ing, we declined. the arrest which ruling. See C.A.R. 54. because our refusal in limine card is not in evidence Background III. caption, and discussion of photo, its Bueno's family, dysfunctional, crime-ridden were his Louis D. Samuel D. Warren and Brandeis rather, facts"; private "embarrassing Privacy recognized first Invasion of as a tort "legitimate public they con- were matters article, Right to Priva- their seminal rulings propriety of those is not cern." The cy, 4 Harv. L.Rev. 198 While Warren before us. presented right and Brandeis first evidence, judge the trial legal theory, At the close privacy as a it was Dean Wil- against verdict Bueno on his defa directed a primary influ- liam L. Prosser who exerted per quod mation claims. As to the libel current formulation. In a law ence over its claim, that such a claim the court concluded published in ex- review article Prosser special damages, require proof would or plained, monetary resulting publica from the losses tort, privacy] of is not one [Invasion tion, injuries including reputation not privacy complex of four. The law of com- feelings. The court found that Bueno had prises four distinct kinds of invasion of proof, such and thus dismissed submitted plaintiff, four of the different interests claim, per the claim. As to the libel se together by which are tied the common court concluded that such a claim would re name, nothing but otherwise have almost quire publication proof that the was directed except represents in common that each publica at Bueno. The court found that the right plaintiff, interference with the of the "specifically tion was not directed at" the ... "to be let alone." plaintiff granted and the motion for thus rul directed verdict on both claims. These Prosser, Privacy, William L. 48 Cal. LRev. ings appeal. have not been reviewed on (1960) (citation omitted). By 389 them, court of did not reach because adopted the drafters of the Restatement upheld light; it the verdict on false and categories: Prosser's four accordingly propriety rulings is not 1) upon unreasonable intrusion the seclu- before us.3 ("intrusion"); sion of another remaining Bueno's claim was for invasion 2) unreasonably publicity places an- privacy by placing public him in of before light public other in a false before the light. proceeded a false That claim ("false light"); jury. jury for Bueno and found awarded 3) publicity given anoth- unreasonable $47,973.90 losses, $5,280 him for noneconomic ("disclosure"); private life er's and losses, $58,253.90 for economic in exem 4 4) plary damages. appealed Defendants appropriation of another's name or like- conditionally cross-appealed. Bueno ("appropriation"). ness (Second) § Restatement of Torts 652 A-E granted ques certiorari on the broad We (1977); Prosser, supra, recognize tion of whether should at 389. Whether Colorado adopt light, question the tort of false and the narrower these as viable tort claims is a question Angelotta of what the elements of such a tort of state law. v. Am. Broad. See (6th Cir.1987). recognized.5 if Corp., should be 820 F.2d 809 granted following specific 5. We certiorari on the However, as we note Bueno did ulti- below, mately proof damages offer in of actual the false issues: case, light per and libel se does not include a (1) Whether Colorado should the tort requirement publication specifically that the case, (2) {falselight publi- with this Whether a plaintiff. directed at the light any alleg- cation is actionable as false when edly implications offensive it creates are refuted acknowledge 4. We Bueno's contention report plainly in the to the con- statements argue judge News failed to before the trial trary, prove Whether a light unrecognized must in Colorado. special damages as an accept element chosen to exercise our discretion and Colorado, presented appeal authority issue as on if Colorado makes false a valid under 49(a). 1(d) granted theory recovery. us C.A.R. "publicity" failed to demonstrate sufficient law A. Colorado claim) High-Tech for false Doe v. (citing existence recognized the this court While Inst., Inc., (Colo.App.1998)); 972 P.2d 1060 1970, Rugg privacy as a tort in of invasion Co., Mortg. F.Supp.2d v. Seidl Greentree 170, 476 P.2d 753 McCarty, 173 Colo. v. (D.Colo.1998) (applying Colorado categories only recently embraced we that business entities lack law to determine & Assocs. v. Dickerson and four. Joe three standing bring privacy (Colo.2001) Dittmar, (ap P.3d claims); v. Interstate Smith Colo. Gas P.2d Borquez, v. propriation); Ozer (not (D.Colo.1991) F.Supp. (disclosure). (Colo.1997) By denying cer parameters ing has not defined the Colorado Institute, High-Tech tiorari Doe ruling privacy" its "invasion of torts but (Colo.App.1998), we allowed theory, including light, any under Thus, intrusion, category, to stand. the first failed). plaintiff's All four false claim four invasion of three of Prosser's their claims failed on merits. categories are viable tort claims Colorado. under ("[Rlecognition of a claim Id. at 1067. B. Other States entail aspect tort does not one thirty writing, this state courts ac As of four."). all recognition of knowledge as a viable claim court, legisla jurisdictions. nor our state Bueno v. Denver their See Neither Co., 491, Publ'g (Colo.App.2000) 495 32 P.3d ture, adopted the second cate expressly has cases).7 Indeed, (collecting twenty-seven Thirteen previ light.6 gory of the tort: expressly adopted the tort. bar, states have not at one Colorado to the case ous courts, after exam elements Appeals case treated the Id. Several of those state Court of claim, ining decided either to a false v. light, & Associates of false McCammon reject outright, e.g., Renwick v. the tort Co., Broadcasting 716 P.2d McGraw-Hill Co., 312, Publ'g News & 310 N.C. Observer 490, (Colo.App.1986). The claim failed 492 (1984) ("We 405, not 410 will 312 S.E.2d on its merits. expand privacy of invasion of ... the tort jurisdiction, includ Five other cases our "), simply light." or noted that include 'false Dittmar, note ing appeals case in the court of justify recognition, presented did not the facts expressly do not the tort's existence but 20, Team g., Yeager v. Local Union e. 377; Borquez, it. 940 P.2d at adopt apply 666, sters, 369, N.E.2d 670 6 Ohio St.3d 453 260, 591 People v. Home Ins. 197 Colo. (1983) ("Under case, the facts of the instant (1979); n. 2 Dittmar v. Joe P.2d 1038 compels rationale which us we find no (Colo. Assocs., 9 P.3d 1146 Dickerson & light' theory recovery in adopt 'false of Inst., Inc., App.1999); High-Tech Doe v. 972 time."). jurisdictions A few have at this Ohio (Colo. 1064-65, rev'd, 34 P.3d 995 P.2d Harr, issue, e.g., Riley v. yet to confront the 2001); Bentley, v. 953 P.2d Fire Ins. Exch. (1st Cir.2002) (noting the 292 F.3d (Colo.App.1998). Hamp uncertainty to "whether the New recognize the Supreme Court would shire time, cases At the same four District Court tort"). law employing Tenth Colorado Cireuit light, ap applied the elements of false Analysis IV. adopted assuming had parently Colorado O'Bannon, F.Supp.2d represents way in which we Tort law tort. Brown v. (D.Colo.2000) (finding plaintiff draw lines around unaccepta- 1180-81 acceptable and Idaho, peals South recognized appropriation, its decision here. we noted delivered 6. When we Dakota, arguably belong in these and Maine also privacy invasion was one of the Howard, v. 132 Idaho ranks. See Hoskins Dickerson & torts that Prosser includes. See Joe (discussing false 971 P.2d 1135 (Colo. Dittmar, v. Assocs. tort); recognized Mont state claim as if the 2001). (S.D. Shope, gomery 286 N.W.2d Ward 1979) (listing approval of the four invasion Tennessee, addition, decided Times, 7. The most recent torts); 373 A.2d privacy Nelson v. Maine Convergence, (Me.1977) (recognizing West v. Media General the four inva torts.). (Tenn.2001), ap privacy sions of S.W.3d 640 after the court society. legal in our scholars are concerned that such an non-criminal behavior ble chilling amorphous tort risks fundamental socially designed ben- encourage Torts are Indeed, wrongful eficial conduct and deter conduct. First Amendment freedoms. Pros- (Second) Torts, See, himself, very eg., Restatement same article where ser 901(c) Correspondingly, liability § he described the four invasion of culpable behavior wherein the categories, aptly arises out of the defama- described duty plaintiff: defendant breaches tension: tion/false unacceptable line into behavior. crosses the raised, question may ap- well be Liability only recompenses wronged unanswered, parently still whether socially wrongful plaintiff, deters the but also light] capa- [false branch of the tort is not Hence, clarity place. in the conduct first swallowing up engulfing ble of very certainty important law serves a defamation; of tort public whole law of regulating function in how we deal with one any printed, whether there is false libel another. example, newspaper, in a which cannot be upon ground. the alternative If redressed substantially overlaps with Both because it case, may turns out to be the it well tort, defamation, another and because it is asked, what of the numerous restric- legal quantify, difficult to courts and scholars hedged tions and limitations which have heartily debate whether invasion many years, in defamation about for place among recog deserves press interest of freedom and the light remains the least- "[Flalse nized torts. discouragement of trivial and extortionate recognized aspect and most controversial they consequence claims? Are of so little privacy." Corp., Cain v. Hearst they may be cireumvented in so casual (Tex.1994) (citing Bruce 878 S.W.2d and cavalier a fashion? Sanford, Privacy, § W. Libel and 11.4.1 at Prosser, (2d Privacy, L. ed.1991)); William 48 Cal. L.Rev. Ray, see also Nathan E. Note, Light Resisting Let There be False Growing Against Important Trend may pub Defamation lie actions Tort, 84 Minn. L.Rev. statements, publicly spoken lished or in the supply attempt Note will the consider by forms of defamation libel or defamation missing [rejecting ations from these decisions slander, by respectively. Black's Law Dictio light] a false and demonstrate the need for (6th ed.1990). nary 417 We consider defama tort."); McCarthy, Thomas The J. by because, tion libel as does invasion of 5A12[C], § Rights Publicity Privacy, privacy by light, specifically this tort of (1996) ("[Clourts yet at 5-185 to draw a by addresses defamation the written word. category clear and distinct line between this by may Id. at 601. Defamation libel law."); 'privacy' and that of of defamation defamatory per se when the statements are Gary Schwartz, Explaining Justify T. recognized inherently injurious reputa as ing Light a Limited Tort False Invasion Alternatively, tion. Id. at 417. statements Privacy, 41 Case W. Res. L.Rev. defamatory per quod are when extrinsic facts (1991) ("The challenge current to the false necessary to illustrate their libelous na welcome."); quite doctrine Diane is way by ture of innuendo. Id. Because our Zimmerman, Light Leenheer Failsé Invasion principal concern with the tort of false Failed, Privacy Light That defamation, overlap lies in its with we now (1989) ("[Thhe N.Y.U. L.Rev. wiser compare defamation and false in terms may course to eliminate be for states protected of conduct and interests to exam light altogether."). ine whether Colorado stands to benefit from including light among recognized its primary objection courts level at false torts. substantially overlaps it with is that defamation, alleged both in conduct and in- A. Elements protected. Additionally, terests to the extent defamation, required it does differ A parame- from review of the elements for defa- its result, largely ters remain undefined. As a se, per mation libel libel light invasion of per quod, and false overlap among the torts:8

demonstrate Se) (Per (Per Quod) Light Libel False Libel 22:1 22:2 CJI-Civ.4th CJI-Civ.4th 28:10 CJI-Civ.Ath Publicity Publication 1. 1. Publication 2. 2. False False 2. False Disregard Disregard Disregard 3. Reckless 8. Reckless 3. Reckless damages Damages Damages Special 4. Actual Actual 4. Defamatory Defamatory Highly 5. 5. offensiveto a 5. person matter of law reasonable 6. About About Plaintiff necessarily Clearly, gist of the torts are sub make the substance or the elements the statement itself false. stantially Beginning publica similar.

tion, identify any light: 4th 22:11. For false we review the elements to CJI-Civ. the torts. One minor differences between A statement contains false information if, whole, as a or considered substance necessary emerges under difference gist of the statement is false. The fact claim, "publication" "publicity." a libel may statement have contained some person than requires that some other necessarily false information does not statement; plaintiff understand the gist make the substance or of the state- requires light, "publicity" communica ment false. large. public Brown O'Ban tion CJI-Civ. 4th 28:11. (D.Colo. non, F.Supp.2d 1180-81 state, regard With to the mental reckless 2000). disregard,10 Jury Instructions use the tort, same definition for either located "falsity" as set forth in the The element publishes An section 22:8. actor a statement only slightly Jury varies be- Instructions when, disregard "with reckless at the time of libel, For tween the torts. publication believes that [he shel if A statement is false its substance or probably statement is false or has serious facts, contrary gist to the true and rea- 22:8; truth." 4th doubts as to its CJI-Civ. City people learning Publ'g see also v. Forest sonable statement Cantrell 245, 249-51, 419 U.S. S.Ct. likely significantly would be to think less (1974) Time, (discussing L.Ed.2d Inc. v. 419 favorably person about the referred to Hill, 374, 534, 17 385 U.S. 87 S.Ct. L.Ed.2d they they than would if knew the true requiring as "actual malice" may facts. The fact that a statement public figure false cases to avoid First some false information does not contained short, pitfalls).11 Amendment In under Colo (CJI) Jury frequently refer to this mens rea as based the 10. Courts 8. The Colorado Instruction See, e.g., Manage light on those set forth in the "actual malice." elements of false Diversified appellate opinion 4th in this case. CJI-Civ. ment, Post, Inc. v. Denver 653 P.2d (Colo.1982) (discussing New York Times 28:12. Sullivan, 254, 272, 710, 11 376 U.S. 84 S.Ct. defining L.Ed.2d 686 as "actual malice" recognized defamatory as a mat- 9. Statements knowledge the statement mean, "with inherently require plaintiff ter of law the to be disregard it was false or with reckless of whether subject of the remark because such remarks not."). was or categories, each of must fall into one of four categories pertain plaintiff, which These Welch, Inc., (b) "(a) ... a 11. We v. Robert include: a criminal offense loath- Gertz (c) incompatible 418 U.S. 94 S.Ct. 41 L.Ed.2d disease ... matter [a] some business, trade, (d) (1974), permits adopt simple profession, state courts to a or ... his office (Sec- private person negligence defama- standard for sexual misconduct." Restatement serious ond) (1977). to do § claims, tion and some states have chosen Therefore, of Torts as we we choose However, because did not later, is not a distinct so. discuss requirement negligence incorporated in defamation separate lower our standard to element in CJI but Mgmt. Inc., 653 P.2d at cases, see, element, within the fifth as a matter defamatory Diversified certainly we would not have lowered of law. law, rea for both about the requisite mens correctly plaintiff recipients if the rado precisely understand, would be and false reasonably un mistakenly but derstand, refer to the the same. that it was intended to (citing plaintiff." 4th 22:8 Restate CJI-Civ. damages, there is no question of On the (Second) (1977); § ment of Torts Keo the "actual dam between textual difference Stewart, 1300, n. 10 hane v. necessary per libel se and false ages" (Colo.1994)). light, public "A For false state see refers to the same light; the there CJI (see) plaintiff people if ment is about the who However, tion, if the is a 22:13. (hear) (read) reasonably the statement would per the claim is for libel private person, and plaintiff." understand that it refers to the se, prove actual dam plaintiff need not Sack, Libel, (citing 4th R. 323, CJI-Civ. 28:7 Welch, 418 U.S. ages. v. Robert Gertz (8d § 41 L.Ed.2d 789 & Related Problems 124.3 Slander 94 S.Ct. ed.1999); McCarthy, Rights J. Public damages" essential for libel "special per Privacy §§ ity 8.83[BJZ] 8.4[C] 4th 22:12. & at CJI-Civ. quod action reside (1997)). again, although definitions Here concerning whether the statement Finally, appear in of these elements different sections plaintiff," we note that "about must be CJI, they pur of the are for all intents and finding require such a jury instructions poses the same. quod light, not for per for libel and false case, In the trial court per se. libel then, summary, apart from "defamato- per claim Bueno's libel se because dismissed offensive," ry" "highly versus the elements of specifically "were not directed the statements nearly the two torts are identical. jury plaintiff. The instruction does at" the requirement that a libel itself include a B. Conduct elementally "about the per claim need be se Both defamation and false however, holding, the trial plaintiff"; for that damag publicity seek to avert false language in & judge relied on McCammon ing plaintiff. exception to a With the Broadcasting Associates v. McGraw-Hill significantly "publicity" required broader (Colo.App.1986), "[tlo P.2d O'Bannon, light, see Brown v. se, must contain a per the broadcast libelous (D.Colo.2000) (not F.Supp.2d 1180-81 defamatory meaning specifically directed at that, Restatement, ing under the (cit injury." at 492 person claiming Id. requires "publicity" communication to the ing Bureau v. Denver Inter-State Detective public large, def "publication" while under Post, Inc., Colo.App. 484 P.2d 131 requires only person amation one other un (1971)).12 position here as to take no communication), derstand the and the defini basis, court, proper whether the trial on this "defamatory" tional distinction between ly for defendants on Bue- directed verdict offensive," "highly the elements are identical. claim, per per se no's libel se or whether libel necessarily explicit element includes an Thus, surprise it comes as no when com- publication plaintiff. be about generally agree mentators cases alleged support which conduct will a Jury the false

The Instructions define "about plaintiff," places, claim, in two different one for light sup- but the same conduct will also light. port a per quod, and one for false For defamation claim. Even the Restate- libel libel, defamatory "A made communicationis ment concedes: light, adopt bar for false had we chosen to it. night Lininger State, 484 P.2d at 133. involved a club owner who sued an individual that had constitutional restraints notwith Additionally, development standing, the common law of inva complained county about the club to the board of may by privacy require sion torts itself the of 214-18, commissioners. Id. at 226 P.2d at 809- higher Lovgren v. First mental state. See Citizens published newspaper A due 11. local the letter 128 Ill Princeton, 411, Nat'l Bank 126 Ill.2d misunderstandings. to a of Id. court series (1989). .Dec. 534 N.E.2d per denied libel se because the statements re- club, specifically ferred to the but did not defame Lininger part, on v. 12. For its Inter-State relies owner, only the who would be identifiable Knight, 123 Colo. 226 P.2d 809 innuendo. Id. at language. "specifically Inter- the directed at" lowering meeting per the standard of that many which the rule stated In cases to publicity giv- reputation community, in the light] applies, the son's a stan here {false defamatory, required by he plaintiff so that dard defamation law. Bolduc v. en to the is (D.Colo.1984) libel or Bailey, F.Supp. have an action for [also] would ("The gravamen .... In such a case the action slander of an action for defamation alterna- will afford an reputation damage the to one's in the is remedy, and the tive or additional community defamatory the caused state ment(g)."). both, theory, If the statement did lower the proceed upon either can recovery for although can have but one he clearly person's reputation, it would be ac publicity. single not, then, a instance of If it tionable as defamation. did then, only would there be a need for a (Second) § 652E emt.b Torts Restatement light that tort was not coextensive v. Pulitzer Broad. also Sullivan See sum, protects defamation. In defamation in (Mo.1986) (disal- 480-81 S.W.2d offense, only (public) from dividuals light facts amounted to lowing false when will serve where the offense does a of a statu- nothing more than restatement claim). reputation lower that individual's in the comm torily barred defamation unity.13 sum, outweigh the In the similarities far and the act between the two torts differences question what then is is the nature of falsity, with actual publicizing a when done protects? the interest that the tort Scholars

malice, give both torts. It rise to one or will writing light variously on false describe the publi- the effect of the with resort is mind," protected "peace "injury interest as cation, ie., protected," as will the "interests person," from inner "freedom scorn next, signifi- a discussed that difference ridicule, embarrassment, freedom from emerges. actionable con- In terms of cance harassment, humiliation and freedom from duct, however, target substan- the two torts injury personal outrage, freedom from tially behavior. similar anguish, feelings, mental free- freedom from disgrace, contempt dom from and the C. Interests Protected Ray, right supra, let alone." at 726 to be Privacy protect right "to be let torts one's omitted) (citation (adding protection Cooley, A Treatise on Thomas M. alone." list). right one's to "self-determination" to 1888). (2d Torts, In ed. the Law of Lying at the core of all these "interests" are terms, "right" Prosser describes such feelings light plain- personal of the false being let person's "a interest alone" whether tiff. The issue is not others publicity of instances where there "has been perception given change cause to their highly kind that is offensive." Prosser and plaintiff himself re- plaintiff, but how the (5th ed.1984). Keeton, Torts, § at 864 sponds publication. "Highly the element of false offensive" is view one's distinguishes it from defamation. Courts community per reputation in and one's requires showing that A defamation claim separate damaged plaintiff's repu sonal sense of offense as interests. publication Crump Beckley Newspapers, community. in the False re See tation (1984) (" Rather, showing. 320 S.E.2d 'See- quires no such W.Va. ondly, the interest showing publication is cases requires a offensive, damaged highly objective but need not sought protected one of to be reputation community. plaintiff's ... the interest reputation,. cases injury subjective one of to theory publication could be affected is the The is that a person'") (quoting Thomas I. without inner highly [the] offensive to an individual case, highly plaintiff jury about a is offensive to informed the A statement 13. In this instruction offensive, highly jury, only statement about "To be a reasonable man when that reasonable major misrepresenta- plaintiff a must be such eyes justified would be in the of the commu- man or beliefs character, tion of his activities aggrieved history, nity feeling seriously offended and may reasonably expected that serious offense by the statement." position. in his to be taken a reasonable man likely example, if the article Emerson, Privacy and Free- to defame. For Right Press, portray Eddie Bueno as a 14 Harv. C.R.-C.L. L.Rev. here did indeed dom the (1979)). criminal, defamatory that 329, But even those states then statement merely difference between offensive. Those cases important and not accept as taken, interests, damage personal although no reputation which offense is two these "affinity" recognize an between is done to feelings, plaintiff's reputation, are few and of a far between. Because the likelihood them: chilling greater much than the likeli- effect is differing protected interests There are plaintiff that an offended will be left hood priva- law of and the the law of defamation action, we feel that with no cause of defama- gra- cy, the substantive which account for adequately appropri- and most tion law will The interest these torts. dations between ately protect public. duty place to another protected by the not light of the individual's in a false is that Delving plaintiff law a into case where mind, te., "in her interest peace of his or brought light defamation claims false public being appear before the made to similarity exposes the between the further objectionable light posi- or false in an Remarkably two torts. few instances exist words, tion, otherwise than as or other proceeded, the false claim but where defamation," on the he is." "The action for failed. Those that did were on defamation hand, protect person's a inter- other "is to See, atypical legal grounds. facts or dubious reputation ...." good in a Neverthe- est Antilla, e.g., F.Supp.2d v. Howard less, distinctions, analytical despite there is (D.N.H.2001) (permitting 174-75 as "not conceptual affinity the causes of between jury inconsistent" a verdict for defendant on two theories. action based on these plaintiff claim but on for Kallinger, 109 N.J. 537 A.2d Romaine v. light claim where defendant's article identi omitted). (citations 284, 290 publicly plaintiff fied as the chairman of two companies and traded entertained rumor recognition of the different We believe actually plaintiff was a convicted felon pars protected primarily rests on interests laws); who had violated securities Moore ing a distinction between indi too subtle Publ'g Corp., 118N.M. 881 P.2d 735 Sun personal sensibilities and his or her vidual's (Ct.App.1994) (ruling defamation claim failed fact, community. reputation in the opinion, proceed but as could to any Supreme trampled United States Court jury mailings on remand where defendant's Scripps-How in Zacchini v. such subtleties culpable portrayed plaintiff poor as for a Co., Broadcasting ard U.S. S.Ct. " decision). (1977). business 2849, 58 L.Ed.2d 965 'The interest recovery placing protected' permitting aside, however, These anomalies there do plaintiff clearly that in a false 'is light arguably exist scenarios where false reputation, with the same overtones men fits, Schwartz, but defamation fails. See su tal in defamation." Id. at distress as pra, categories at 893-96. Schwartz's are 400.). Prosser, supra, (quoting at S.Ct. essentially two. The first involves cases agree. plain- that a where the defendant reveals intimate and False statements false, generally personal, plaintiff's pri "highly tiff offensive" will ei- details of finds life, negatively example, portraying plaintiff portray or at- vate ther as harassment, Crump, or character. At the same the victim of sexual tack his conduct time, publicized dispar- being poverty-stricken, that are at statements S.E.2d or as aging satisfy City Publ'g and false the elements defa- Cantrell v. Forest 419 U.S. Thus, 95 S.Ct. L.Ed.2d 419 Schwartz, supra, mation. See likely publications having suffering that defame are the same a terminal illness or from depression.14 depictions These offend, not nec publications that offend are Nimmer, kinship Right Speak 14. These reveal between Melville B. instances from "giving publicity Theory Applied Times to Time: First and the tort Amendment private being "pri- Misapplied Privacy, to Libel and 56 Calif. facts": difference suggests vate facts" in false claims are false. See L.Rev. 935 Nimmer defamatory, potentially high Implications V. Constitutional essarily but are category ly The second encom offensive. today reject Our decision to in plaintiff in a portrayals of the more passes Colorado reflects not caution with re- See, e.g., than he deserves. positive torts, spect adopting new but also our Messner, v. 43 Misc.2d Spahn Julian recognition implicates that the tort First 538-40, (N.Y.Sup. 250 N.Y.S.2d principles. Amendment Freedom of the Ct.1964), 451, A.D.2d aff'd, 260 N.Y.S.2d press part ais critical of our constitutional 324,274 aff'd, 18 N.Y.2d N.Y.S.2d weigh framework. We must torts in this (1966),vacated, 387 U.S. 221 N.E.2d 543 carefully against infringement they area L.Ed.2d 744 87 S.Ct. represent upon press. freedom of the (trial finding privacy where court invasion of we, Although as readers or viewers of the depicted a war plaintiff was in book as hero news, regret empath- sometimes excesses or and "raced out into who earned Bronze Star ize with individuals whose unfortunate enemy barrage"-two of a the teeth of the plights exploited, rely are we nonetheless ut multitude of characterizations were heavily upon open full and disclosure. terly embarrassing plaintiff). false and Because tort law is intended both to ree- it, potential preclud ompense wrongful prevent acknowledge the conduct and to important claims, it is it in be clear its identifi- ing such but we are convinced that represent decidedly wrongful a those scenarios narrow cation of that conduct. The tort of fails test. The sole area published cases. If the statement band of which it differs from defamation is an area disparages plaintiff, and he will insults fraught ambiguity subjectivity. quite naturally suffer shame and humiliation information, Recognizing "highly offensive" falsity will view because those that read the even framed within the context of what a properly differently, him defamation will person highly reasonable would find offen- compensates lie. Colorado's defamation law sive, necessarily subjective compo- involves a humiliation, "personal plaintiffs for mental highly publication nent. The offensive anguish suffering." 4th 22:18. CJI-Civ. material is more difficult to avoid than the If, however, published intimate details publication defamatory information that true, proper then "disclosure" is the are damages person's reputation in the commu- publication cause of action. Should the take nity. prevent liability In order to under plaintiff's pecuniary it Hikeness and use tort, the media would need gain, appropriation provides the tort relief. "highly anticipate whether statements tort of intentional And there remains the ordinary person offensive" to a reasonable distress/outrageous infliction of emotional though publication even their sensibilities publications in conduct for offensive which reputation. no does harm to the individual's engaged in the defendant "extreme and out contrary, defamatory To the statements are conduct, recklessly rageous or with the intent easily recognizable by more an author or causing plaintiff emotional dis severe publisher statements are those because such tress," provided plaintiff actually incurs damage reputation in that would someone's severe emotional distress as a result of the words, community. In other McKelvy Liberty defendant's conduct. results; is measured its whereas (Colo.App. Mut. Ins. per- is measured 1998). majority great of the scenarios possible ception. It is even that what would proffered support a cause of above would highly location would not be offensive one action under one of these alternative theo another; or what would have been highly ries. We therefore believe highly highly in 1962 would not be offensive adequately protected by offended words, the stan- offensive other quantify, shifts based dard is difficult to existing remedies. "disclosure," ie., publicity private giving where the claims should lie in those instances facts. See id. under facts, true, same if would be actionable tort, inclined to light and we are not of a commu- false subjective perceptions upon the workshop. we "take from When become nity. debate," of free we should at the the field press considers hope that the all We would very much we are least know what and how upon the individuals impact publicity of that, find no benefit to taking. Absent we press involved; hope that the we also would by adopting the tort of jurisprudence our any publication of scrupulously avoids the ap- privacy. The tort invasion of However, law ad- false material. plies only to a narrow band of cases such inappropriate in proseribes conduct equately protection is any potential gain in individual punishes breach with relative area and this new, chilling effect the unde- offset certainty. are comfortable clarity and speech. fined tort could have on adequately protects us from existing law reporting, or from cavalier publications, Finally, we note that the Colorado General malice. from Assembly authority promul full retains Conversely, in which in the limited area statutory type we gate causes of action privacy and defamation light invasion of reject. they Should deem this decision here coextensive, ambiguity there is are not cautious, are, course, overly they free of invariably open subjectivity chill that would Therefore, remedy. legislate a the court of purposefully reporting. We avoid and robust judgment appeals is reversed and the case is that has de upsetting "the delicate balance by that of remanded for consideration court veloped in the law of defamation between the appeal.15 Eddie Bueno's cross in re of an individual's interest protection falsehoods, injury published dressing from dissents, and Chief Justice MULLARKEY society's in protection of interest and the join MARTINEZ and Justice RICE Justice vigorous debate and free dissemination of the in the dissent. Inc., 42 Enquirer, v. Nat'l news." Fellows Cal.Rptr. 721 P.2d Cal.3d MULLARKEY, dissenting: Chief Justice respectfully I I dissent because believe VI. Conclusion justify majority opinion sufficiently fails to its holding today is a deliberate exercise Our decision to eliminate the tort believe false is too of caution. We jurisdiction. invasion of from this Colorado, amorphous a tort for and it risks inflicting unacceptable chill on those formally By refusing the tort liability. seeking to avoid the media privacy, court of false Texas, Supreme rejecting Court today privacy protections in Colora narrows privacy, observed: independent do and closes an avenue of relief is added to the field of libel is plaintiffs thirty "[wlhatever available to other states. field free taken from the debate." 7; maj. op. at n. v. Denver See Bueno (Colo.App.2000). compelling, less these same consid- While Publ'g. play private, non- erations also holding, deprives plaintiffs the court so Thus, political expression. the defamation effectively recognized in a tort that has been narrowly tailored to limit action has been jurisdiction many years. As for the possible. speech free as little as decision, ramifications of this immediate precludes court Plaintiff Eddie Bueno from Corp., v. Hearst 878 SW.2d Cain (Tex.1994) recovering (quoting New York Times v. under his false claim Sulli van, 254, 272, 376 U.S. S.Ct. by Rocky to him harm caused Mountain Sweeney v. Pat News (quoting article, sending him back to the court (1942))). terson, 128 F.2d Such resurrecting appeals with the burden of arguments. tailoring yet develop in his defamation has the nascent court, cross-appeal, for review. 15. Plaintiff's conditional left unad- trial is now suitable dressed when the court of affirmed the

90§ majority pri- wedding picture. Today's opinion offers two See id. at 20A. Front and tree, reject top mary directly its decision to the center at the of the rationales for under heading the one-inch Biggest "Denver's light tort and to restrict the false Family," photograph First, Crime was a of Eddie protections in this state. the available himself, "EDDIE, light duplicates simply defa- court reasons false labeled as the oldest of the Bueno children." Id. The fol- respects in several and is therefore mation maj. op. unnecessary lowing provided claim. See at 894. an thirteen-column article ex- Second, might asserts that the tort the court activity tensive detail of various criminal chilling family, including First Amendment have a effect on within the Bueno over twen- ty-five headings Id. forming freedoms. statements and lawsuit, among basis of Bueno's them: "Old- view, my arguments per- are not these Siblings Younger er Lure Into Life of First, overlap of some suasive. mere Crime." See id. at 22A. light and defamation elements does not false complete foreclosure of an inde- warrant a newspaper Eddie Bueno sued the for defa- pendent light false claim. A better solution invading privacy by por- mation and for his duplicative traying light overlap simply preclude him in to having a false as to is Second, light damages awards. false offers criminal propensities siblings. same as his protections Amendment the same First trial, granted At newspaper's the court light provides, therefore false will defamation directed verdict on Bueno's defamation claim Third, First Amendment freedoms. not chill light go allowed claim the false to needlessly places jury. jury today's decision in Colorado returned a verdict favor of rule, majority at odds with a clear and claim, light awarding on the Bueno him majority's analysis application of the to Bue- $53,253.90 in economic and non-economic unfairly to an burdensome no's case leads losses, $53,253.00 exemplary as well as result. damages. The court of affirmed. Today, majority opinion invalidates this

I. Facts by refusing viability award light of false in Colorado. Bueno, sixties, Eddie now his left home age escape family. a troubled He at Overlap Justify IL Does Not work, school, eventually and found attended Light Elimination of False family. During married and raised a those years, separate Bueno did all he could to First, light the court reasons that sisters, himself from his brothers and overlaps with defamation both the inter- virtually parents had no contact with his averted, protected ests and the conduct life, siblings. abiding lived a He law and was unnecessary maj. an claim. is therefore See siblings' never involved his criminal activi- Here, op. agree at I do that the best ties. overlapping is the solution torts wholesale only imagine

One can Eddie Bueno's reac- majori- elimination of one of the claims. The picked up Rocky ty opinion begins analysis providing tion when he Mountain its 28, 1994, Sunday, August lengthy comparison News on to see the of the similarities one-inch, page, bold-print front banner head- differences between false and defama- tion, rightly finding that the two torts are not Biggest Family." line: "Denver's Crime duplicates. smaller sub-headline read: "15 of 18 Bueno exact See id. at 898-911. The Records, Siblings Including Have Arrest majority concedes scenarios exist fits, Society light arguably Ann "where false but defama- Known Bandits." See Carna- han, fails," Rocky Biggest Family, Denver's Crime tion at while false id. because News, 28, 1994, Aug. publications "highly 1A. offensive" to Mountain at Inside focuses on story person, targets only newspaper, the tabloid the Bueno took a reasonable pages. publications plaintiff's reputa- full at that lower the four See id. 20A-24A. The community. page depicted full-page tion in the See id. at 901. De- first article imperfect spite fit between false tree, family featuring photographs Bueno defamation, de- siblings surrounding parents' each of the the court nevertheless outweigh the need to sufficiently Amendment concerns simi- two torts cides that the remedy. provide independent of a false elimination justify the lar to "narrow band of leftover remedy for the outset, I maj. op. At the 902-908. See id. at 902. cases." See majority's disagree with the conclusion threatening particularly is majority's ap- My main concern freedoms due to its "sub- First Amendment comparison proach not with its The jective component." See id. at 908. defamation, decisionto but with its light and distinguish light majority attempts to false foreclosing overlap by the false the "solve" by noting "defamation from defamation my opinion, a better entirely. In light tort results; false whereas is measured its damages the be to restrict solution would light privacy is measured light raising false plaintiffs both available Id. at 908. I do not see claims, perception." preventing du- thus and defamation meaningful difference between the level The Restatement damages awards. plicative tests,. view, my (Second) approach, encourages objectivity of these two of Torts privacy easily quantifiable than one stating that where more neither standard is single publication, the on a measured without claim is based neither standard can be recovery may only injured party "have one geographic or some consideration of the upon or all of the different damages one ques- his temporal the in context of statement (Second) of Torts grounds." Restatement Therefore, objective light tion. the (1977). § 652Aemt. d threatening First standard is no more objective rights than the defa- Amendment is not novel-courts Such a solution mation standard. duplicate preventing awards well versed at simultaneouslyproviding plaintiffs with while Furthermore, identical "actual malice" example, a multiple relief. For avenues of protects First Amendment free standard liability complaint products with a light in and false doms both defamation action, may among several causes choose cases,1 easily apply full and this court can including negligence, strict liabili a claim for protections range af of other constitutional implied warranty, ty, express or a breach of light inva forded to defamation cases to false See, e.g., the above. or a combination of See, privacy e.g., Lerman v. sion of cases. Co., 187, A.H. 684 P.2d Palmer v. Robins (2d Co., 123, Flynt Distrib. 745 F.2d 135 (Colo.1984) (involving all of the above 198 Cir.1984) (applying the same constitutional Therefore, simultaneously). actions light protections libel and both light similarity and defa mere between cases). protec Under these constitutional rejec justify complete mation does not tions, light pose any unusual does not light tort. also Cain v. tion of the false See threat to First Amendment freedoms. (Tex.1994) Corp., Hearst S.W.2d J., (arguing (Hightower, dissenting) in a 5-4 Majority's Analysis Rejecting The IV. plaintiffs often have a choice be dissent that Light Negative Ramifications False Has relief, and that "ov- tween similar claims Generally Applied Both and As to Bueno itself, reject eriap, by no reason to a cause is light privacy"). invasion of of action for false A. General Ramifications Light Adequately III. Protects False emphasize I must first the national context Freedoms First Amendment today's place. which decision takes majority opinion leaves at odds justify preclusion of Colorado In order Supreme light with the States Court2and fall under the false United claims that tort, majority majority explains opinion that First a clear states majority 1. The concedes that "under Colorado U.S. 87 S.Ct. 17 L.Ed.2d 456 Hill, law, Co., requisite both City mens rea for Publ'g and Cantrell v. Forest precisely would be the same." and false 245, 249, U.S. 95 S.Ct. 42 L.Ed.2d Maj. op. at 899. (1974). acknowledged Supreme tort 2. The U.S. Court Time, Inc. v. of false Co., (D.Colo. F.Supp. state Gas tort, joining only three states 1991). reject entirety. in its

explicitly Clearly, the tort See Eddie Bueno and other Cain, 579; W.2dat Lake v. Wal-Mart plaintiffs 878 S. who have raised false claims in (Minn. Stores, 582 N. W.2d 235-36 Colorado relying have been reasonable in on 1998); Publ'g. Renwick v. News & Observer impression the false tort 310 N.C. 312 S.E.2d Today's actionable this state. decision depart majority despite from the rule our punishes that reasonable reliance. acknowledgement recent that we traditional jurisdictions B.

ly rely upon majority Applied As with re Ramifications to Bueno spect to invasion of torts. See Dick majority's analysis unfairly reaches an Dittmar, erson & Assoc. v. 1001 burdensome result. The trial court directed (Colo.2001). Furthermore, no modern trend against a verdict Bueno on his defamation decision-Tennessee, explains today's claim but allowed go his false claim to most recent state before Colorado to consid jury. jury the found for Bueno and in er this debate of current cases and $593,253.90 awarded him in economic and non- commentary, explicitly majori embraced the losses, $53,258.00 economic as well as in ex ty just year, recognizing rule last emplary damages. opinion today, In its the independent tort. as viable West v. majority sets aside the verdict and remands Convergence, Media Gen. 53 S.W.3d the case appeals to the court of to consider (Tenn.2001). 640,648 Bueno's contention that the trial court erred although majority opin I also note that the it when threw out his defamation claim. ion that claims its decision reflects "caution majority's The heart of the decision is torts," respect adopting maj. op. new actually extraordinarily found in a short but 903, accurately at the decision is more de significant maj. op. footnote. See at 896 n. 8. deprives plaintiffs scribed as one that of a holds, majority In footnote the without effect, already, recognized tort is in discussion, that the defamation claim of libel this state. While it is true that this court per requirement se "does not include a explicitly adopted never the publication specifically directed at the past, we have made consistent references to plaintiff." Conveniently enough, Id. Bueno's Co., People its existence. See v. Home Ins. original per by libel se claim was dismissed 197 263 n. P.2d n. Colo. trial precisely court because trial (Colo.1979) (referring to the "four distinct judge Rocky determined the Mountain News privacy]" [of kinds set forth in the "specifically article was not directed at" the (2d) Torts); Restatement see also Ozer v. plaintiff. single essentially This footnote de- (Colo.1997); Borquez, 940 P.2d Ditte today, yet cides Bueno's defamation case mar, Furthermore, 34 P.3d at 1000. majority explicitly refuses to acknowl- Associates, McCammon & Inc. v. McGraw- Instead, edge majority this result. now Co., Broadcasting Hill requires go Bueno to back to the court of (Colo.App.1986), appeals the court of ex appeals persuade and either the court of pressly recognized light and defined its appeals that footnote 8 is not mere dicta or elements. litigate the issue. Due to the uncritical manner in which both If, concludes, majority as the the tort of appeals this court and the court of light essentially is the tort of defama past treated the false tort over the alleged tion in both the conduct twenty years, even the United States District 900-906, protected, interests at it see id. Court for the district of Colorado has been simply damages should order awarded led to conclude that false is viable under recovery paid for Bueno's on false to be O'Bannon, Colorado law. See Brown v. (D.Colo.2000); damages him F.Supp.2d as for defamation. The false Seidl Mortg. F.Supp.2d Greentree light jury given in instructions this case were (D.Colo.1998); adequate Smith v. Inter- Colorado substance a defamation ruling yet appeal. 3. The defamation has not been viewed re- on certainly upheld plaintiff's would not be claim,4 damages appeals properly light claim. current upholding Bueno's duplicated award. reasons, respectfully I dis- For the above sent. justify the would reason remedy would be majority's remand MAR- to state that Justice I am authorized rare instances one of those claim is Bueno's join in this dis- RICE TINEZ and Justice action- that would be majority identifies sent. under defama- light but not under false able say If true, so. should If this is we tion. band of in that "narrow case is

Bueno's today, majority opinion precludes

cases" the to send not reasonable it is

see id. the court Bueno back to

Eddie illusory goal. in search of

the trial court exactly type me, this case To Application for WA In the Matter of the protection for the calls out situation that RL DOUBLE COM TER RIGHTS OF light invasion of tort of false afforded RIV IN the PANY UNCOMPAHGRE something portrayed privacy. Bueno was ER, OURAY COUNTY. his efforts to criminal-and he was not-a destroyed. When privacy were protect his Company, Applicant- RL Double D. Brandeis and Louis D. Warren Samuel Appellant, they right privacy,5 proposed the first in concept that has become tapped a into succeeding important creasingly more Telluray Properties, Appellee, Ranch could Although and Brandeis

years. Warren today's infor seope of predicted the not have arising from explosion and the abuses

mation Schieldt, Engineer, Wayne Division Water immediately recognize what it, they would 4., Appellee Pursuant Division No. Bueno lost his Bueno. happened to Eddie 1(e). C.A.R. published a newspaper privacy because including him in story wrongly sensational No. 01SA273. The court's refusal of criminals. caste Colorado, Supreme Court nar today recognize false En Banc. protections in Colorado rows rule, majority also Sept.23,2002.

contradicts a national the rather modest deprives Bueno of Eddie him back he and sends

compensation won vastly better fund litigation with a

into more

ed foe.

V. Conclusion rejects majority the tort

Because the suffi- without agree with the justification, I

cient cannot the false to eliminate

court's decision Therefore, court I hold that the

tort. would (libel and false per chart of the elements for defamation se 4. The elements of defamation Instructions). 22:1-2, quod) light, are listed in CJI-Civ.4th libel the Colorado based on per Jury for the elements of and see CJI-Civ.4th 28:10 light, the elements which were based on Warren, D. Brandeis & Samuel 5. Louis D. opinion appellate in this case. detailed in the Privacy, Right 4 Harv. L.Rev. 193 maj. op. (providing comparative See also

Case Details

Case Name: Denver Publishing Co. v. Bueno

Court Name: Supreme Court of Colorado

Date Published: Sep 16, 2002

Citation: 54 P.3d 893

Docket Number: 01SC386

Court Abbreviation: Colo.