Drew Pearson and Jack Anderson v. Thomas J. Dodd

Anderson, and Jack PEARSON Drew Appellants, DODD, Appellee. J.

Thomas

No. 21910. Appeals States Circuit. of Columbia District

Argued Dec. Feb.

Decided 9, 1969. Denied June

Certiorari See 89 S.Ct. 2021.

Mr. Donovan, John Washington, C.,D. with whom Mr. Warren Woods and Mrs. Betty Murphy, Washington, Southard' C., D. brief, were on the appellants. them, City, copies replaced Sonnett, made originals, York New F. Mr. John Mulvihill, copies and turned over the Donald J. Mr. with whom Anderson, brief, for to the defendant Washington, C., who was D. the manner in aware of appellee. copies had been obtained. The defend Robinson, Wright, Tamm and Before Pearson Anderson thereafter ants Judges.

Circuit containing published articles informa 2 gleaned tion from these documents.” Judge: WRIGHT, Circuit SKELLY J. exposure of of the arises out This case I Thom- alleged of Senator misdeeds the newspaper by Connecticut as Dodd of The District ruled that An- and Jack Pearson columnists Drew newspaper appellants’ con six columns granted has District Court The derson. cerning appellee, which were attached summary judgment to Senator partial appellee’s complaint, did not establish liability finding here, on Dodd, appellee pri for the tort of invasion of the same theory At conversion. a of origin vacy. tort, That historical whose summary time, court,denied partial the lies in famous and Brandéis the Warren theory of of invasion judgment on the 1890,3 recognized article of the court’s privacy. of Both branches always District of Columbia.4It has interlocutory judgment us on are before of considered a defense to claim in a District Court’s appeal.1 the affirm We privacy publication, vasion of how for in- denial ever, published that matter com grant privacy its and reverse vasion plained general public interest.5 summary judgment for conversion. complained gave ap The columns of here undisputed in the case were facts pellants’ appellee’s version relation as follows: District Court stated lobbyists foreign ship with for certain * “* * interests, occasions gave interpretive several [0]n and an bio 1965, July, former graphical public two appellee’s and June sketch of times plaintiff, at They clearly ap of the career. thus bore members pellee’s of two qualifications assistance with the a staff, plaintiff’s Senator,6 entered of the States and as such amounted authority paradigm plaintiff’s example office without published to a him, speech subject removed and unbeknownst to suit for invasion files, privacy. his numerous documents part operative Publishing Jaffe, District Court’s 1. The 4. Afro-American Co. v. U.S.App.D.C. 70, are lia- stated “that the defendants order 125 366 F.2d 649 theory plaintiff (1966) (en banc) ; of con- ble to Bernstein v. Nation belonging Broadcasting Co., D.D.C., F.Supp. of documents version al 129 theory plaintiff, (1955), affirmed, U.S.App.D.C. of invasion not on a but 817 98 privacy.” 112, or- 369, certified its denied, The court 232 F.2d cert. 352 U.S. interlocutory appeal 945, 28 267, under (1956). der 1 77 S.Ct. L.Ed.2d 239 Appellee 1292(b) (1964). and U.S.C. Publishing Jaffe, 5. Afro-American Co. v. this court moved that both 4; Publishing Sidis v. F-R interlocutory appeals. grant We denied Corp., Cir., 806, 15, 2 113 F.2d 138 A.L.R. granting motion, that of while denied, 393, cert. 311 U.S. 61 S.Ct. appellants’ granting appellants. order Our (1940) ; 85 L.Ed. 462 Warren and cf. privacy specified as well motion that Brandeis, 4 at Harv.L.Rev. be brief- shoud as the conversion 214-216. ed. principles 6. Since under common law pellants’ F.Supp. publication Pearson, D.D.C., 279 does not amount 2. Dodd privacy, (1968). an invasion of we need not reach 102 questions sug- the serious constitutional Bight gested by Time, Brandeis, Hill, Inc. v. 385 and U.S. 3. Warren Privacy, 87 S.Ct. 17 L.Ed.2d 456 4 Harv.L.Rev. urged plaintiffs Indeed, appellee has not bedroom of with electronic theory ap- means, holding any vigor appeal that “the invasion of the * * plaintiffs’ pellants’ publications torti- in themselves solitude seclusion privacy. ously he Rather pri- a violation of their invaded vacy.” argued mis- the District Court has claim, privacy apprehended his which rather the manner in which went approve the We extension of information in columns was obtained privacy tort invasion of to in than the matter contained them. intrusion, by physical stances of not, spheres into from which Appellee proceeds under branch ordinary plaintiff’s posi man privacy theory Prosser Dean reasonably expect tion could “intrusion,” labeled which has been particular defendant should be excluded. recognized increasingly courts8 Just as Fourth Amendment ex 9 has years. it in recent Thus commentators panded protect govern to citizens from bugging unauthorized held that ment intrusions not where intrusion is dwelling,10 telephone,11 tapping of a reasonably expected,17 so should tort through windows,12 snooping and over protect law citizens from other citizens. shadowing13 zealous amount invasions protection should not turn exclu privacy, accompanied sively question property. trespasses whether the intrusion involves a technical types other of invasion Unlike property. under the law of The com privacy, not involve intrusion does law, Amendment, mon like the Fourth publi of its essential elements one 18 “protect people, places.” should obtained.14 information cation of the completed the obtain The tort ing with then becomes whether by improperly the information appellants Pearson and Anderson im- intrusive means. properly protected intruded into the sphere privacy either rec- Dodd in has not been “Intrusion” obtaining ognized rejected in the Dis- as a tort on which recog- their columns were In determin- trict has been based. It Columbia. ing question, may courts, assume, most nized of state we with- a number deciding, appellee’s employees out recently Hampshire that the New Su- (such and Hamberger former did preme v. East- commit improper they Hamberger intrusion a defend- when man15 found liable re- eavesdropped upon moved confidential files with the ant marital intent who . 383, Agency, Privacy, 13. Prosser, Pinkerton National f.L.Rev Detective 7. 48 Cali Stevens, Ga.App. 159, (1960). Inc. v. 108 132 389-392 (1963). S.E.2d 119 8. See Notes 10-13 infra. Telephone 14. Fowler v. Bell Southern & Bloustein, 7; supra Prosser, Note 9. of. Telegraph Co., supra 11, Note 343 F.2d Dignity: Aspect Privacy of Human as an 156; Hamberger Eastman, at v. Prosser, 39 N.Y.U. An to Dean Answer 10, 206 Note A.2d at 242. 962, (1964). L.Rev. 972-977 Supra 15. 10. 107, Eastman, Hamberger N.H. 106 v. 10. (1964) ; 239, 16. 206 A.2d at 242. 11 1288 A.L.R.3d 206 A.2d 869, Harper, 105 S. 143 W.Va. Roach v. Compare States, Olmstead v. United 277 (1958). E.2d 564 438, 564, 457, 464, 466, 48 U.S. S.Ct. Telephone (1928), 944 and v. & 72 L.Ed. Goldman Bell Fowler v. Southern States, 129, 134-136, Co., Cir., Telegraph 62 F.2d 150 United 316 U.S. 5 343 Telephone (1942), with (1965) ; 1322 86 L.Ed. v. Bell S.Ct. LeCrone Ohio States, App. 129, 352- Co., v. 389 U.S. N.E.2d 533 Katz United 201 120 Ohio (1967). 507, 19 L.Ed.2d 576 88 S.Ct. States, Inc., Detectives, v. Katz Pendleton 12. Souder at S.Ct. 507. 389 U.S. La.App., So.2d damages out- to unauthorized weakness hold liable in show them one merely temptation who succumbs and siders.19 listens. Although appellee’s complaint charges appellants course, abet appellants aided and Of did documents, peruse copies ted in the removal more than receive facts, undisputed narrowed of the documents taken from Judge files; they published District the concurrence of excerpts with from counsel, established them in the press. national But in ana copies lyzing privacy, received documents know a claimed breach of in ing juries removed without injuries had been from intrusion and ap publication to hold kept authorization.20 If we clearly sepa were should be pellants privacy intrusion, for invasion of liable rate. the in Where there is facts, generally these we would establish truder should be liable what proposition that one who receives in ever the content of he learns. An what intruder, knowing from an it eavesdropper formation to the marital bedroom intrusion, by improper may intimacies, has been obtained may hear marital or he guilty opinion a tort. In an untried hear statements fact or law, developing legitimate of tort are not public; area interest prepared go person ap A purposes so far. that should no make proached by eavesdropper hand, with an difference. the other On (where gath offer to in share the information private the claim is that through eavesdropping concerning plaintiff ered the would published, has been play perhaps part the nobler he should the of that whether informa spurn genuinely offer his private the and shut ears. How public tion is isor of ever, point it to it seems us that at this interest should turn not on the manner place great would too a strain on human in which it has been Of obtained.^ argued Appellants appellee’s copies. have that The District statement of Court’s employees gives support former and com- essential facts no to conversion, contention, mitted neither nor and it is laid to rest the privacy, following colloquy of nor invasion because their ac- between coun- public policy privileged Judge shortly tions are sel and the District before exposing wrongdoing.' summary judgment granted: in favor of See was (Second) Agency asking of Restatement THE COURT: You for are (1958) summary judgment theory f : Comment on the that agent privileged merely receiving “An is in- reveal the is suf- documents acquired confidentially formation ficient to make them tort feasors. agency him in protection of in the the course his MR. SONNETT: It is more than ** superior that, of a of him- interest Your Honor *. person. Thus, Now, if self or of a the third here I remind Your Honor that secretary, undenied, confidential information is to the effect Anderson’s it is principal committing Ginn, participated the is or is that Miss in the secret agent crime, copying about to commit a the of the documents. ”** duty going under no to reveal it. not THE I COURT: am not de- compare rights party for And Code of Ethics Govern- cide the vital of either on a Service, 103, 86th ment House Doc. No. little difference in immaterial detail. “Any person Cong., (1958) your facts, 1st : I Sess. read As of statement * * * government (IX) you should: service if I misread and it I want tell corruption Expose me, you basing your wherever discovered.” are for case sum- mary judgment ground that an Pearson, supra F.

20. Dodd v. unlawful act was committed the re- Supp. ceipt at 102. of stolen letters. argument, Knowingly. oral counsel On MR. SONNETT: attempted argue Knowing the District that THE COURT: them to grant of on Court’s have been stolen. publicizing was based some the issue of MR. SONNETT: And participation taking them; active, of the the both. part appellants, Well, of rather THE documents on the COURT: course. reception knowing than the mere may alleged had lost course, be that he of invasion in trover forms tiff both rightfully possessed,23 case. he chattel which same combined it and defendant had found and that the separately con have Here time, use. it to own With converted his publi appellants’ nature sidered allegations losing finding be- concerning appellee, and have cations fictional, leaving question of came published was that the matter found the defendant had “converted” publica public interest. obvious only operative property one.24 pri itself an invasion tion not that vacy. concluded also obtaining we have Since distinctive feature The most in appellants’ role damages, its conversion is measure make them liable did formation goods value of the converte is the which subsequent intrusion, their appellee for theory the “convert d.25 The that pri no invasion publication, itself ing” way defendant has in some treated vacy, render reach back to cannot own, goods if were so that role tortious. properly plaintiff can the court ask property forced sale of the decree a II rightful possessor conv from the ap- erter.26 ruled The District subsequent receipt use pellants’ stringent appel- Because of this meas photocopies long recog damages, ure of it removed had been lants knew every wrongful es- nized that interfer authorization pellee’s files without liability for con- appellants’ personal property of an tablished ence with conclude We version. other is a the inter- conversion.27 Where guilty the facts conversion are not meddling complete falls short of shown. very deprivation posses substantial rights sory property, in the com the tort has remarked Prosser Dean forgotten tort.”21 conversion, is the not the mitted is lesser but “[conversion forgotten entirely at- is it is not wrong trespass That of to chattels.28 History by before us. the case tested The Second Restatement of Torts has contours, con- largely its defined has by defining marked the distinction con- ex- now follow should tours as: version clearly ob- from cept derive where “* * theories.22 practices abandoned or solete n intentional [A] exercise of dominion or control over a chattel tort the- is the substantive Conversion seriously which so interferes with the common underlay the ancient ory which right plain- A of trover. another to for control it that the action form of law Conversion, appeilee 42 Prosser, has title to Nature of the contents of The the 21. right (1957). posses- files or has a of exclusive Corn.L.Q. 168 contents, bailee, sion of those or is a history lies hand of “The id. 169: 22. at Cf. even a mere custodian of those contents. upon heavy of conversion.” the tort generally Ames, History 24. See The 277, of by question, ei- not briefed 23. A threshold Trover, (1898). 11 Harv.L.Rev. 374 , us, party not decided and hence ther Harper James, property held 25. 1 F. & F. of the The Law of is nature the files of Torts 2.36 by appellee § contents files, them- Those office. in his Senate Prosser, 26. 42 Corn.L.Q. at States, are paid the United for selves 170. by the office owned in an maintained States, by the Unit- of g., Willoughby, 27. United See e. Fouldes v. 151 contrib- They are meant Eng.Rep. 1841). (Exch. ed States. 1153 appellee officer as an the work ute Prosser, at Corn.L.Q. 28. question thus States. United of the 170-173. entirely irom doubt free is not pellee’s required pay Those were re- may justly files. documents be actor night, photocop- moved from the files at chattel.” full value other the ied, undamaged returned to the files fall under interferences Less serious operations trespass.30 before office resumed in the definition Restatement’s morning. Insofar as the documents’ val- is more than The difference appellee ue their resided in usefulness of dam The measure one. semantic office, as records of the business of his trespass ages not the whole value clearly substantially de- with, rath property but interfered prived of his use them. diminution in its value er actual This course is not an end More im the interference.31 caused long recog judgment the matter. It case, has portant for for this nized that often only have value can obtained with conversion be beyond springing liability above and damages, from nominal whereas for physical possession.33 They may their trespass exists on a show chattels embody ing damage information or property ideas whose eco to the in actual depends part nomic value or in whole terfered with.32 Here the District Court upon being kept granted judgment partial summary secret. The on liability then arises whether the alone, while issue conced tak copying en ing means of possibly no more than office nominal type damages might files is which the law be awarded subse con protects. general version quent trial. Partial rule has been that ideas information are granted could not have been subject legal protection,34 but the law theory trespass on a to chattels with developed exceptions to this rule. undisputed showing out an of actual gathered Where information is and ar damages property question. ranged at some cost and sold as a com modity on agreed market, properly It pro clear that it is property.35 tected facts committed no Where conversion ideas are physical formulated with labor gen- documents taken inventive (Second) Bottone, Cir., Restatement States v. of Torts 222A 365 F. (1) (1965). denied, 2d cert. 385 U.S. 87 S. Ct. 17 L.Ed.2d 437 Id., may § 217: “A ato chattel by intentionally (a) dispos- be 34. See committed International News Service v. As sessing Press, chattel, (b) 215, another sociated 246, of the or U.S. 39 S. 68, using intermeddling (1918) Ct. (opinion or 63 L.Ed. with a chattel in s). possession Mr. Justice another.” Holme The traditional rule has been that con Harper supra James, IF. & F. Note version will lie taking for the of tan 2.6. § gible property, rights or embodied in a support tangible “To an action of necessary to a token for the enforce chattel where rights. the invasion of interests Harper ment those See 1 F. does not result James, in its destruction in & or F. 2.13; Note dispossession thereof, early Annot., Property Subject it was held Conversion, — physical there must be some harm 44 jamin (1955); to the Mackay A.L.R.2d 927 v. Ben possessor. chattel or to its Realty Unlike the Holding Franklin Co., & trespass quare fregit action of clausum 288 Pa. 135 A. 50 A.L.R. 1164 land, in the case of overly no action be could This restrictive rule has recently maintained for a mere harmless inter- been in relaxed favor of the rea meddling goods. possessor’s with proposition any intangible sonable proprietary inviolability generally protected in personal interest proper as personal property ty may of his subject did not receive be the matter of a suit for protection which the similar interest conversion. See Evans American possession dignitary in the Co., of land or the Philadelphia Stores Ct. Common inviolability per- in interest Pleas, of the 3 Pa.Dist. & Co.2d 160 ” ** son receives. Harper James, supra 1 F. & F. 35. International News Service v. Asso- (Footnotes omitted.) Press, § 2.3. ciated created limitations under the established by literary or works ius, case by the Constitu- law and common protect- they researches,37 are scientific tion.40 instruments they constitute Where ed. compe- commercial effective fair and physical of the conversion Because no may gath- develop them tition, those who place, took files contents protection of under fruits er their copied from the the information because the law.38 in those files subject protec- property shown to be not wheth question here is conversion, by the District tion suit for right keep files ruling guilty appellee had a are Court’s er eyes, infor of conversion must be reversed. prying but whether from under files falls those taken mation ordered. So property, en law of protection of the In by for conversion. forceable suit information view, not. The it does

our Judge TAMM, (concurring): Circuit appel of letters the contents included legal Some scholars will see the ma- records office supplicants, and lee from jority distinguished opinion from its —as is not kinds, of which the nature of other holding aspect. actual ironic Con- —an by Insofar as record. fully revealed duct for which enforcement a law offi- literary tell, of it amounts none canwe castigated soundly is, cer would be invention, to se or property, to scientific phraseology majority opinion, of the by appellee for the plans formulated cret tolerable; which, found conduct if en- ap it Nor does commerce. conduct of gaged by government agents would any way pear held information to be suppression lead to the of evidence ob- analogous by appellee, for sale means, approved tained these when copy produced servi a wire news fresh profit used for the press. There is anomaly lurking ce.39 in this situation: regard the news media themselves as quasi-public yet they institutions demand complains, not of the Appellee immunity from the restraints which bought property misappropriation of vigorously placed govern- demand be exposure of by him, but created ment. regarded That which is as a mor- injurious (1) to his either tal taint on information by any secured revelatory (2) of matters reputation or illegal government conduct would keep he has a he believes pear majority from the opinion per- to be type Injuries are re of this to himself. technique missible as a oper- modus journalist. inva andi for libel and at law suit dressed Some will find confusing, respectively, de but I privacy am where sion of free to act my own views under the can be doctrine for those torts fendants’ transporting victed of goods, This, stolen developed protection across lines). state as common- law known branch copyright, an au- reserves law See, g., e. Evans v. American Stores publication of first thor Co., supra Note 34. Literary generally Annot., See work. 39. See International News Service v. Asso- Rights, Property A.L.R.2d Artistic Press, supra ciated Note 34. appellee 40. We have held that is not enti- Bottone, g., See, States e. tled to for invasion of pho- (employees who sold privacy. Appellee Note 33 originally appel- sued drug describing libel, tocopies dropped lants for but has this claim during litigation. con- company’s course of the manufacture methods binding up- I consider decisis which stare and curbed our consideration me. propriety of the trial court’s action upon summary judgment. motion for Wright’s concur, Judge therefore, I predicate judgment must upon We our disposition I some case albeit have us, the record as it upon comes difficulty concluding that the philosophical some theoretical or idea of legal remedy would be if en- without might what the record have been had the tire factual herein before situation were pleadings and the record in the trial pleadings encompassing possible us on all presented court us with a wide legal latitude aspects suggested by the Our facts. study multiple and a pos- selection of however, is, review confined to limited dispositions. Upon sible area, compressed by present the amended com- rec- plaint, stipulations, ord power. restricted certain have more voice than

Case Details

Case Name: Drew Pearson and Jack Anderson v. Thomas J. Dodd

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 9, 1969

Citation: 410 F.2d 701

Docket Number: 21910_1

Court Abbreviation: D.C. Cir.