Rosann C. Scheetz Kenneth L. Scheetz, Jr. v. The Morning Call, Inc. Terry L. Mutchler John Doe And/or Jane Doe

Before NYGAARD, MANSMANN and Judges, RONEY, Circuit Senior Circuit Judge.* OPINION OF THE COURT NYGAARD, Judge. Circuit action, In this section 1983 plaintiff-ap- pellants Kenneth and Rosann Scheetz al- lege defendants, newspa- local per, reporter, and an unnamed state ac- tor, conspired deprive the Scheetzes of granted district summary judgment court in favor of the defendants. We will affirm.

I. Scheetz is a officer in the

City of Allentown. Rosann Scheetz is his wife. In the argument course of an be- tween them in their in January home 1988, Kenneth struck Rosann. Rosann left house, but returned approximately a half an argument hour later. The re- sumed, again and Kenneth struck Rosann. Rosann police. called the Allentown Two responded prepared officers a standard report, “offense/incident” consisting of a face sheet supplemental reports. report1 “face sheet” of this stated that reported Rosann Scheetz had a domestic disturbance, that two cars had re- sponded, and that Rosann had left home. meantime,

In the Rosann had driven to station, apparently Allentown filing Pennsylvania with the intention of Protection From Abuse Petition. The offi- * Roney, pute Honorable Paul H. United "supplemental reports” States Senior whether the are Judge Circuit Appeals, sitting by designation. for the Eleventh Circuit Court of Pennsylvania’s records available under Right to Know Law. There is some evidence available, reports generally 1. The "face that these sheet" is a document were sub similar parties agree ject to a blotter. approval police supervisor. that this to the of a parties document is a record. The dis incident, initially but when two denied prepared Rosann interviewed

cers who made them he reports” and fronted with Mutchler’s “supplemental They that Rosann the file. reveal stolen and re- part of claimed that the her husband had beaten Stephens stated further comment. Chief fused counseling. The and had refused before did, however, insights his into the offer file crim- options: three gave Rosann abuse, stating “people subject spousal from request protection charges, inal “women ... tear their dresses fake it” and order, discipli- department initiate abuse say they were rip up their bras and and sup- against Kenneth. These nary action Deputy raped.” Mutchler also interviewed that Rosann had visible plements also note ra- Monaghan, who offered assorted Chief not want injuries, that Rosann did physical why up no follow had tionalizations for permitted home and that she was to return The done on the Scheetz incident. been commander’s night the in the shift spend to on the incident. refused comment office. by an article Mutchler published The Call sup- third Wayne Stephens filed a Chief investigate “Police didn’t assault titled spoken to report. the He had plement to Eight para- complaint against officer.” incident, the third the and Kenneth about comprised of graphs of the article were fact, this as well supplement memorialized report the quotes from the beat- Kenneth’s statement to Chief as injuries Ro- ing incident which detailed the speak were scheduled to he and his wife article, The bulk of the sann received. marriage counselor. None of with a however, investiga- focused on the lack of took supplements indicated that Chief police depart- follow-up tion against Kenneth. any disciplinary action Stephens quoted say- as ment. was Chief incident, Shortly after had not been investi- ing that the incident of the Year” named “Officer Scheetz was quoted also the com- gated. The article later, Stephens. months by Chief Several Stephens had made to Mutch- ments Chief Week,” press part “Respect for Law abuse, Depu- as well as ler about domestic re- photos of Kenneth were releases and explanations why ty Monaghan’s Chief ceremony A dinner and official leased. pressed. The last two charges no were The Morn- were held Kenneth’s honor. quotes the article consisted of columns of Call”), (“The newspaper, a local ing Call superiors praising his Kenneth’s from story photo on this honor. published a work. Call, Mutchler, reporter The Terry investigating prior interested in became Stephens’s comments Apparently Chief involving Kenneth and Rosann. incident depart- provoked a number of calls to reporter paper from the had tried Another questioning his commitment to ment report police, get from Stephens’s At protection of women. Chief re- to release it. Mutchler’s who refused reporter a different request, The Call sent copy report of the from the quest for a day. next Stephens interview formally refused. department was published an article entitled Call then managed get Mutchler nonetheless beating report investigated like says “Chief copy report.2 article, Stephens attempt- In this others.” He clarify his earlier statements. ed to Ste- Mutchler then interviewed Chief with Scheetz had stated that the incident Stephens incident. phens about the Chief "supplemental reports.” cannot dispute as how Mutchler 2. There is some affidavit, report. copy primarily Mutchler sub- Mutch- of the because obtained counter this she an affidavit in which she stated that mitted Ste- remains confidential. Chief ler's source spoke see if various confidential sources to deposition he phens at his told stated copy report. had a Mutchler of them stolen, report was but he also Mutchler that the conspire with or en- averred that she did not courage anyone suspect that Mutchler had stated that he did not report. to steal the A source appeal decide on it. Because we stolen copy report, and she then showed her a dispute grounds, resolve this we need not other copied copied from it. Mutchler was obtained. over how the "face sheet” and the information from both investigated. explained He been he had jurisdiction district court had over thought he initially being subject was asked if he matter of this section 1983 ac- personally investigated pursuant complaint, to 28 U.S.C. 1331 & 1343. §§ jurisdiction We have why he investigation appeal said no over this from a final order the district attempted pursuant was done. He also court clarify to 28 U.S.C. statements domestic about abuse. Three paragraphs towards the end of the article Our grant review of a of summary briefly recap the events listed in the judgment plenary. is Summary judgment reports. appropriate if genuine there is no dispute fact, of material moving and the party is Mutchler, Kenneth and Rosann then sued entitled judgment to as a matter of law. Call, The and “John or Jane Doe.” The 56(c). Fed.R.Civ.P. In reviewing grant complaint alleged that and The Mutchler summary judgment, accept we all of the conspired Call had with an unknown state non-moving party’s allegations as true and (the defendant) actor Doe deprive to draw all factual inferences in the non-mov Scheetzes of their right to ing party’s favor. Erie Telecommunica in violation of 42 privacy U.S.C. 1983. § tions, City Erie, Inc. 1084, v. 853 F.2d complaint The pendent raised several (3d Cir.1988). 1093 state claims. The Call and Mutchler filed an answer II. liability that denied jurisdiction- and raised The district court concluded that al and other defenses. After limited dis- alleged Scheetzes a prima had sec- facie covery, The Call and Mutchler filed a mo- violation, tion 1983 but that the first tion to dismiss the Doe and to defendant rights amendment of the defendants out- dismiss the subject action lack of mat- weighed the Scheetzes’ privacy interests. jurisdiction. ter The district court The defendants invite this court to affirm sidered the motion to dismiss and to dis- ground3 on the alternative that this claim miss the Doe defendant and to decided is not actionable under section 1983. Be- it, deny but indicated that it would recon- cause we conclude that the Scheetzes have sider the issues after discovery alleged not a violation of a constitutionally completed. had been 130 F.R.D. 34. After protected interest, we will affirm. the defendants refused questions to answer The rely defendants on dicta in v. Paul source, about Mutchler’s the Scheetzes Davis, 424 U.S. 96 47 compel. filed a motion to then Defendants L.Ed.2d support argu- motions, prior renewed their and filed addi- ment that “garden variety” pri- invasion of tional judgment motions for on plead- vacy claims are not actionable under sec- ings, summary judgment protective and a tion 1983. plaintiff Paul involved a who order. shoplifting been arrested for ac- and granted district court defen- quitted. photo, however, name His and dants’ motion for summary judgment in appeared flyer shoplifters” on a of “known part, part, granted it in judgment denied group circulated to po- merchants claim, the defendants on the dis- § plaintiff lice chiefs. The sued under sec- pendent claims, missed state dismissed 1983, alleging pro- that he had a due the Doe defendant and dismissed all re- liberty reputation cess interest maining motions as moot. 747 F.Supp. that the chiefs had violated his con- 1515. The appeal. stitutional rights by defaming him. Co., also invite Defendants this court to affirm on & 26 L.Ed.2d ground plaintiffs (1970); (3d alternative that Lalley, failed to Labor v. 809 F.2d 220 Call, conspiracy Cir.1987). establish a ler, between The Mutch- we will affirm on Because conspiracy ground plaintiffs state actor. Such a allege have failed to necessary to liability § establish privacy right, on behalf violation of a constitutional we private of the actors. See Adickes v. S.H. Kress need not this issue. reach confidentiality of the legion, the contours proposi- rejected the Supreme Court recognized We have murky. are branch liberty or was a alone reputation tion that as such some confidential meaning of the within property constitutionally protect records, is medical dicta, the Court In clause. process due confidentiality branch ed under argu- alternative to consider on went v. States right. United federal constitut- chiefs’ action that the ment F.2d Corp., 638 Elec. Westinghouse right a violation ed Po Cir.1980); Order (3d Fraternal noting that first c.f.

privacy. After Philadelphia, lice, No. 5 Lodge past limited had been decisions Cir.1987) action officers (3d (§ 1983 matters, the Court procreative family and tests employment challenging various state of by the publication concluded violative questionnaires could as an arrest such act official an recog similarly courts rights). Other the constitutional invasion 'of constitute to redress may be used nized § Paul, at right of a constitutional violations (1st F.2d Ryan, right. Borucki however, the Court year, very next on based Cir.1987) (allowing 1983 action Roe, v. in Whalen held records, but psychological of disclosure in- “the individual to both extends privacy immunity shields concluding qualified that personal of avoiding disclosure in terest clearly es not right was officers because indepen- in matters, the interest ... violation); v. Fadjo of at time tablished important kinds making of in certain dence B 1172, Unit (5th 1175 Cir. Coon, 633 F.2d 869, 589, 599, S.Ct. 97 429 U.S. decisions.” 1983 a claim under 1981) stated § (plaintiff recog- (1977). Whalen 876, 64 51 L.Ed.2d intimate, disclosed officials state in contained the information that nized compa information insurance personal constitutionally protect- records medical nies). of confidentiality branch under the ed confi Concluding violations that right. privacy may be privacy action dentiality right of information is some not, however, end does 1983 able under § confidentiality branch protected under are Although inquiry. defendants our in Paul the dicta privacy, right to prohibits that Paul wrong arguing in See, v. Ad- e.g., notwithstanding.4 Nixon action, we conclude privacy 1983 Services, 433 U.S. General ministrator of did that the correctly argue they 2797-98, 2777, 53 425, 457-58, S.Ct. 97 priva constitutionally protected not have constitu- (1977) (president has L.Ed.2d 867 divulged information in the cy interest right privacy tionally protected ques: that the report.5 We note in a in this Accordingly, the Scheetzes papers). constitutional a federal whether tion of information contend case is dis been violated right privacy has is sim- report police incident in the tained a federal stat from whether question tinct right. federal ilarly protected (i.e. the Free privacy under utory right to Act) or state common of Information auton dom exploring the Although cases violated. has been law right are right omy branch priva since invasion since the constitutional with Whalen can be reconciled Paul matters); (the plain- cy only protects the most intimate Paul at issue fact 718, Cir.1988) (9th Bucher, the kind of shoplifting) is not F.2d Davis tiffs arrest officer, protec- constitutional (concluding entitled to of correctional that actions wife, do exhibiting photos tion. of inmate’s nude de type "which of malfeasance not involve by a line of cases is bolstered Our conclusion response”); v. J. Pesce a constitutional mands Sterling action be recognize refusing section 1983 789, School, High F.2d Morton public is type made of information cause the required Cir.1987) (state (7th school statute that See, sense. "private” in not en student had psychologist to disclose Cir.), (8th Goodwin, F.2d e.g., Wade v. teacher did with gaged in sexual relations denied, 488 U.S. cert. confidentiality). right to federal violate (1988) (publication L.Ed.2d 114 not establish did of "survivalists” on a list name Dept. States v. Report MANSMANN, United Justice Circuit Judge, dissenting. ers Press, Committee Freedom the aptly As articulated in Davis, Paul 749, 109 1468, 1476 13, 103 delineation of the constitutional right (1989). L.Ed.2d 774 Reference to state law categorical description.” “def[ies] confidentiality particularly on is not useful analysis, this so case law cited L.Ed.2d 405 Kramer, parties Pennsylvania as to Full-Court Press: law cannot control the Sacrificing constitution Vital Pri- federal right. al vacy Interests on the Altar First Rhetoric, Amendment 8 Cardozo Arts & We conclude the information Entertainment L.J. (quoting contained in protected is not one stating commentator as “[pjerhaps pri- by the confidentiality branch consti vacy is not given recognition tutional it de- Although the serves outlines of the as a confidentiality right fundamental are not value simply be- definite, the information that pro has been cause concept is so difficult to formu- tected in other cases was information that late justify in non-subjective terms”) disclosing person reasonably expected (footnote omitted). Despite the difficulty private. to remain In reporting poten this in drawing subjective line, I believe police, tial crime to the Rosann Scheetz presented Scheetzes have a consti- could not reasonably expect the informa tutionally protected privacy interest in the tion to remain secret. could details of their marital disturbance and brought charges without concur counseling. rence, point at which all the information up would have I record, wound on the would analyze then The Morning it would have been non-confidential. Call’s first publish amendment this Cox Broadcasting Corp. Cohn, See v. private information, considering the 469, 494-495, 1045-46, significance the and would (1975) 43 L.Ed.2d 328 (privacy interest also address fact the that the confidential fades when information is in information unlawfully acquired. was I record). This information is not like medi concur with the district court’s determina- (which cal or financial records have been tion that the first amendment values out- accorded some constitutional protection by weigh the privacy interest, Scheetzes’ Ibut court, this see Police, Fraternal Order of would vacate order of district court supra) where there is a expec trial, and remand nevertheless, because privacy tation that will preserved. be if proven, the fact that The knowingly Call police called, When private are distur acquired the information an in unlawful bance loses private much of its character.6 manner permit should to re- We conclude that the information Rosann reasons, cover. For these I respectfully Scheetz disclosed in the reports is dissent. not constitutionally protected. III. I.

For the foregoing reasons, will we affirm the district grant notes, court’s As summary majority judg- recog- we have ment to the defendants.7 nized a constitutionally protected privacy police may 6. Of course the right. have an argument interest in they The Scheetzes' is that keeping investigative private. They information autonomy right have an to seek marital counsel- may protect by appropriate this regula- interest ing, and that defendants "chilled" that have police’s tion. The privacy interest in the right by publishing the article. The Scheetzes information should not be with the confused seeking claim that would before hesitate individual's in the interest information he or counseling further out of fear counsel- reports. she reported newspaper. would be in the We this examined claim find it to Scheetzes also claim the defendants’ ac- without merit. tions autonomy interfered with (footnote privacy) omit- invasion of as an tort of information personal in such interest majority ted). agree with the I therefore United States medical records. employee’s in the privacy interest Co., there is no 638 F.2d 570 Westinghouse Electric v. facts, in the Coon, contained “Offense/Incident Fadjo v. Cir.1980). See (3d reported a Scheetz” Report,” that “Mrs. Cir.1981) testi (5th (subpoenaed F.2d 1172 SW, Al- Appel at “2616 St. “disturbance” concerning “the most mony of information 10:06 January lentown” on life”); Plante [plaintiffs] details of private dispute as a “husband/wife p.m., described (5th Cir.1978) Gonzalez, wife left.” settled when information), cert. de financial (personal nied, by The reported of the information Some Dev. San see J.P. But L.Ed.2d however, Call, only in contained confi- Cir.1981) (not recog ti, 653 F.2d 1080 (6th police report portions enti- dential right in dis nizing a constitutional Supplements” and was “Investigative tled juvenile social histo closure of public portion of from the not discernable records). ry information detailed the report. That marital of the Scheetzes’ private facts Nonetheless, find a majority did not of their counseling precise details mari- in information privacy interest “the disturbance, including description of tal report.” agree I in the tained injuries statements. Rosann’s in the contained of the information some clearly confiden- Since report, specifically tial, nature I then examine Re- in the contained “Offense/Incident keeping interest it a constitution- port,” protected is not under confidential. Broadcasting Cox al interest. Roe, as “the indi Cohn, Whalen Identified Corp. v. avoiding vidual disclosure (no liability for disclo- L.Ed.2d 328 matters,” already personal dis- rape name of a victim’s sure priva right to record). Because the branch closed in applicable to disclosure cy has been found is classified Report” “Offense/Incident one’s life. depart- the details of public document under See, e.g., at not U.S. at S.Ct. policy, that information was ment’s Police, Lodge No. 5 Fraternal Order fact, In as confidential. treated of (3d City Philadelphia, 812 F.2d 105 he considered admitted that Scheetz of Cir.1987) (medical and financial informa record. to be a matter information (em Westinghouse, tion); F.2d at 570 Moreover, reports an incident to one who Whalen, records). In expect ployee’s medical cannot-reasonably police Brandeis’s dis quoted Justice occur- Court from items —the threshold factual certain United States to char sent Olmstead v. incident, category general of an rence its “ right privacy interest as ‘the time, identity acterize the address and description, the alone’ as ‘the most valued confiden- to be let complainant remain —will ” 25, 97 at 599 n. Therefore, men.’ contained civilized the information tial.1 (quoting Olmstead n. 25 Report” is not at 876 the “Offense/Incident States, a United protected from disclosure J., (1928) (Brandeis, 564, 572, 72 L.Ed. 944 privacy interest. constitutional sug dissenting)). formulation Prosser, Another Privacy, 395- Calif.L.Rev. con branch gests the fact (noting effect of “the right of an individual not already of “the made is one sists the matter public by made private affairs If record is a confi- have his public record. Whalen, n. at 599 government.” one, public inspection open not dential (quoting at purposes it is not ...” ... Indeed, newspapers. is available in local much of this information routinely published police scanners over I, University Chicago Maga- Rosann Scheetz Private characterized as a “shout- 1976)). zine, 7, (Autumn January 14, 1988, match.” On the date reported by Call, of the incident two determining information is “In whether responded cruisers to Rosann’s call privacy protection, we have entitled to responding the first officer testified it is within an individu- looked at whether outside, that he found crying Rosann some expectations of confidential- al’s reasonable yards from the Additionally, house. Police, 812 F.2d ity.” Fraternal Order of during previous domestic disturbance the Further, at 112. more intimate or “[t]he spent Scheetz children had night at the justified the more home of the chief of neigh- expectation subject it is the that will not be —also bor—and when Kenneth and Rosann had public scrutiny.” Id. at 812-13. Deter- previously weeks, separated for a few Ken- mining prior caselaw established stayed neth with the chief. Given this dis- protected by that medical records were details, closure of these limited interest in Fraternal may not have had a reasonable Police, Order we had no occasion to expectation of confidentiality concerning fully explore more the factors to consider press by disclosure to the neighbor evaluating expectation a reasonable incidents of domestic disturbances. confidentiality.2 factor I One believe relevant whether addition, In the marital discord was well- expectation the Scheetzes had a reasonable known to Kenneth Scheetz’s fellow is the extent to limit- officers. deposi- One officer testified in his ed their own disclosure of the marital dis- that, incident, after January “talk counseling prevent turbance and so as to police department] was Scheet- [around public knowledge. Confiding in one’s up again. know, zie his beat wife You it friends, leader, family, religious for ex- big thing.” was no Another officer con- ample, not suffice diminish a rea- veyed opinion that the Scheetzes were expectation privacy against sonable dis- thought “fairly problem” to have a serious large. Disclosing closure to the previous epi- and there was talk both of confidantes, beyond one’s close possibility sodes and the of recurrences. however, would reduce one’s reasonable ex- phone superior In a call to a officer on the pectation day following reported incident, Ken- explained neth that he and Rosann had had There is evidence in the record that the fight, left, that she had and that he would disharmony Scheetzes’ marital was familiar neighbors. years for work because he wanted to Some before the issue, marital disturbance at when the find her. Kenneth also told other unspecified persons and neighborhood, Scheetzes lived another a officers other neighbor had summoned the to incident.3 The what about the Scheetzes testi- expectation closely appears 2. The reasonable test also to have informed the identification of employed determining resembles the test right when privacy branch of the to right privacy a under the common law tort of in Whalen. (Second) invasion of See Restatement subsequent In a article Professor di- Prosser (1977) (defining of Torts 652D the tort priva- vided this common law tort of invasion of privacy through publication invasion of (1) cy categories: upon into four intrusion private publication facts as the of a matter con- solitude, plaintiffs pri- seclusion or or into his cerning private highly life of another that is affairs; (2) appropriation vate of‘the person offensive to a reasonable and that is not likeness; (3) publicity places name or that Prosser, concern); legitimate public supra, at (4) light; plaintiff public in a false and disclo- (under the law common tort invasion embarrassing private sure of facts about privacy, "something an intrusion must be Prosser, plaintiff. Privacy, 48 Calif.L.Rev. objectionable which would be offensive or to a [person]”). reasonable right privacy protect This common law to Scheetz also testified that he dis- 3. Kenneth facts from disclosure was first the incident with his mother and a mar- cussed espoused in the landmark law review article riage arguably Because he had a counselor. (1890), Right Privacy, to 4 Harv.L.Rev. 193 expectation confidentiality in Brandéis, by Samuel Warren and Louis and currence, necessarily that it does not follow called on police officers that several fied Thus, declined to spite she support. fact informally to lend them legal ac- charges infor- take alternative press the confidential received had The Call ensued, tion, fellow Rosann interviewing legal Kenneth’s no action and mation officers, privacy expected inter- reasonably the Scheetzes’ could have Scheetz negligible. infor- would be of the confidential est disclosure quietly dormant that had remained mation infor- well, disclosed Rosann Scheetz As department reports. in confidential The morn- concerning the incident. mation incident, left the when she after true where the especially This a.m., Rosann ate at 6:00 police department after the 16 months disclosure occurred diner, her then removed a at breakfast See, Reader’s Di- e.g., Briscoe v. incident. arrived at their schools. She children from Ass’n, 483 P.2d 4 Cal.3d gest that she Kenneth observed home where (common (1971) Cal.Rptr. sweatshirt, “mark” on on her had blood of truck infringed by publication cheek, around her left and a “red her area” years ago); Mel- of 11 hijacking conviction night before.4 stemming from the eye—all Reid, Cal.App. P. 91 vin an au- employer, phoned her Rosann law invasion of (liability for common not be explaining she would diologist, producers of imposed upon movie her she and for work because reporting prostitution and prior life of that revealed “disagreement” that had had a husband long since taken crime of woman who After a weekend they needed to work out. respectable name and new established work; pa- home, Rosann returned life).5 tients, dog for her visible she blamed addi- squarely raises an this case infor- its injuries. Had The Call obtained consider, namely, tional factor nonprivileged “[t]he source from a mation to the question ... as effect difficult disclosed Rosann whom time, the extent lapse also be would records, example of a as for forgotten negligible. conviction, may dredged up criminal discloses, did the Scheetzes the record As publici- given general more years after privacy of their scrupulously guard the Prosser, Because this ty.” at 396. supra, family, neigh- discord from marital had lain undis- Nevertheless, nei- bors, and co-workers. police department in the confidential closed to disseminate did take action ther and Rosann Scheetz year files for over Ro- facts in forum. private these action, any legal pursued had not charges, seek a press did not criminal sann expected reasonably have could order, pur- Abuse Act Protection From the confidential Kenneth. The departmental sue censure light In of this publicly disclosed. never be the infor- suggests that because majority agree majority’s delay, I cannot with disclosed, publicly could have been mation appropriate assertion otherwise interest. had no the Scheetzes called, private police are distur- charges could it is true that criminal “[w]hen While private of its character.” loses much Rosann’s con- bance brought without been acted, sources, Clearly, the may jeop- authorities have the disclosure these expec- lost privacy interest. Scheetzes have ardized moreover, any privacy inter- privacy; tation of by heavily out- would be asserted est them conflicting testimony Although there is legitimate weighed by interest the state’s injuries, cerning severity never- the Rosann’s (in prosecuting the case criminal crime theless, she had discoloration at a minimum charges), protecting vio- victims of domestic v-shaped eye, laceration on a one small around (had proceedings the there been under lence bone, her jaw other marks on and some her Act), or Pennsylvania From Abuse Protection "light headed” that she felt She testified face. enough (had depart- discipline maintaining police the a doctor about the week to visit the next against disciplinary proceedings head, instituted allegedly ment Kenneth). caused lump back of on the her against "pushing” a wall.

211 Information that has (1979) (no remained confidential 399 liability publication for period time, over juvenile any legal suspect’s absent protected name by state action, can reasonably expected statute re- where the paper independently and public lawfully cede from notice.6 obtained the information); Nixon

v. Communications, Warner Inc., 435 589, 1306, U.S. 98 S.Ct. 55 L.Ed.2d 570 II. (1978) (considering tape access to record- Against the pri- Scheetzes’ constitutional ings admitted into public record); interest, vacy Morning Call’s free Landmark Communications, Inc. v. Vir- press right guaranteed by the first amend- ginia, 829, 435 U.S. 1535, 98 S.Ct. 56 ment must be balanced. We have not had (1978) (criminal L.Ed.2d 1 sanctions for dis- previous occasion to balance a constitution- closure of information concerning judicial al against interest a first amend- investigations guaranteed confidentiality ment interest. Fraternal Order Po- Cf. under state statute found violative lice, (balancing at 105 a constitu- amendment); first Oklahoma Publishing tional against interest disclosure Court, Co. v. District 308, 430 U.S. 97 sought by government application for 1045, (1977) (no 51 L.Ed.2d 355 liabili- for job openings); new Westinghouse, 638 ty publication juvenile’s name, pro- F.2d at 570 (balancing employees' constitu- tected state protective statute and or- tional in medical records der, hearing where open public); to the against sought pursuant disclosure to an Cox Broadcasting, 469, 420 U.S. at 95 S.Ct. OSHA investigation). Nor has the Su- at 1029 (holding that the first amendment preme squarely Court appro- addressed the forbade a state from prohibiting publica- priate balancing test. The Florida rape of a victim’s name Cf. that had been B.J.F., Star v. 524, 2603, 109 S.Ct. public into Whalen, record); released 105 L.Ed.2d 443 (denying civil liabili- 589, 429 U.S. at (disclosure 97 S.Ct. at 869 ty premised upon a state statute designed sought statute). under state Additionally, protect the privacy rape aof victim’s employed tests when balancing first name); Daily Smith Mail Publishing amendment against values pri- common law Co., 97, 443 2667, 99 S.Ct. 61 vacy L.Ed.2d vary widely.7 interests 6. I confine my analysis of the Scheetzes’ different standard used contains California interest to the situation raised here in three-part “[First,] inquiry. the social value of reporter’s copy source was a [second,] published, confidential as depth facts of the portions well as non-confidential affairs, ostensibly private article’s intrusion into report. I do not address [third,] the outcome of a party extent which the volun reporter different situation may tarily position acceded to a notoriety.” derived Tribune, on Inc., contained the confiden- v. Oakland Cal.App.3d Diaz portions source, 118, tial 132, 762, from another (1983). Cal.Rptr. Another e.g., neighborhood “gossip,” a requires logical confidante of standard nexus between Scheetzes, source another legitimate information disclosed and a matter of may reasonably expected not have e.g., interest. See Ross v. Com Midwest keep munications, department Inc., 271, secrets. Here (5th Cir.), F.2d policy denied, 935, 326, established the cert. certain information, making (1989); Press, reasonable the Campbell L.Ed.2d 316 Seabury privacy expectations, (5th Cir.1980). absent disclosure from an- F.2d other source. standard, Yet another delineated as the "de standard, requires monstrative interest” 7. Several have been employed tests press define some demonstrate interest. value, styled See, first amendment e.g., "newsworthi- McNutt v. New Mexico Tribune State ness,” against privacy right. Co., common ("it N.M. 538 P.2d Note, Florida Right v. B.J.F.: S[tar] Priva- feasible neither nor desirable for a court to cy Amendment, Collides with the First make a Iowa distinction between news informa L.Rev. & 151-52 entertainment”), denied, 103 The Re- news and for cert. (Second) (1977) 318, statement pro- of Torts (1975). § 652D 88 N.M. 540 P.2d 248 This stan application motes the community of a dard mores has been criticized as a "leave-it-to-the- standard, applying Zimmerman, press standard of Requiem offensiveness model.” Note, as community determined mores. Heavyweight: The A Farewell and Bran Warren Collides, Right Privacy Tort, supra, 291, at Privacy 151 n. A103. deis's Cornell 353- L.Rev. case, only by preponderance of the evi- by this show presented the facts

Given precise defamatory statements however, delineate the dence that were I need not balancing made). appropriate negligently of the parameters I would leave that applied to be and test Second, perhaps importantly, more Here, cases. three refinement for future police chief who officers and case. simplify the resolution of this facts Kenneth Scheetz for the “Offi- nominated place the Scheetzes’ The first two facts Year Award” were aware of the cer of the within the realm marital disturbance incident. The confidential previous marital by the first significance protected public concerning the Scheetzes’ do- First, oc- Kenneth Scheetz’s amendment. violence, mestic combined with the award renders his cupation as a officer Kenneth, public upon matters of bears conduct, bordering on the crimi- domestic upon significance insofar as it reflects actionable, public signifi- nally a matter of department police department. That the position as a cance and concern. Kenneth’s recommend, for the Officer of the officer focuses the distinc- law enforcement Award, an officer whose domestic Year “ interest,’ taken to ‘[p]ublic tion between depart- grist for the violence Interest,’ ‘public curiosity mean ... [and] mill,” public ment “rumor could raise public to mean value to the of receiv- taken sensitivity domes- regarding police cern governing importance.” information of The information re- tic violence issues.8 Bloustein, and Pri- The First Amendment arguably police reports could vealed Supreme Justice and the vacy: Court do- serve to reflect attitudes toward 41, Philosopher, Rutgers L.Rev. 56-57 violence, the local com- mestic about which (1974). occupation Because his the field munity strong public has a interest. safety implicates legitimate public public may exist about in- “Whatever differences capacity perform interest in his Amendment, terpretation of the First there duties, pole the latter this case is closer to agreement practically universal gossip and infor- of the continuum between major purpose of that Amendment was to importance. In the governing mation of governmental protect the free discussion defamation, landscape similarly the law Communications, affairs.” Landmark differing proof provides for standards (quoting at at 1541 435 U.S. private figures. Compare public 214, 218, Alabama, Mills v. 384 U.S. Butts, Publishing Co. v. 388 U.S. Curtis (1966)). L.Ed.2d 484 (1967) 1975, 18 L.Ed.2d 1094 87 S.Ct. third, particu- juncture, At this figures prove by clear and (public must troublesome, larly factual element convincing allegedly that an de- evidence my determinative in view: case becomes famatory statement was made with knowl- allegedly ac- Morning Call’s unlawful falsity disregard edge of its or in reckless quisition portions of the confidential falsity) of its truth or with Gertz v. Robert guidance Welch, Inc., police report. We have little as 94 S.Ct. element; figures to factor in this the Su- (private L.Ed.2d 789 need to to how 536-37, contributing at S.Ct. at 2610-11. In his Additional factors U.S. dissent, 55 public significance challenged utility policy include statements of Justice White of a law, status, plaintiffs "public figure” public rape victim’s name to the kind of knowl- time, passage edge protected by of the event and the location the first amend- and discourse Note, 550-52, Right giving private rise to the fact. at ment. (White, Id. at J., 2618-19 Collides, (citing Privacy supra, dissenting). at 152 cases). Here, significance because the marital disturbance is related to the arguably 8. The in this case is attending given publicity Scheetz, to Kenneth the award stronger even Star, than that articulated in Florida signifi- identity triggers S.Ct. at 2603. There private Thus this cance of the information. important, general, albeit the Court found an implicate question of whether case does not public interest in the disclosure of information names, distinguished plaintiffs’ analyzing from the concerning rape without further significance, warrants a rape facts of victim was also an other whether the name of Star, public significance. distinct interest. item of Florida expressly reserved the limits or preme press’ right has restricts the Court to re- Star, 491 U.S. at question. port See Florida truthful information. The First 8, 109 (“[t]he Daily at 2610 n. 8 grant Amendment press does not the principle does not settle the issue of Mail protection. such limitless whether, in cases where information has at -, Id. S.Ct. at 2519. newspaper acquired unlawfully by a been declined acqui Court to label “lawful” the source, pun government may or ever pursuant sition of information promise to a acquisition, only ish not the unlawful but Clearly, later broken. in our case the ac well”); ensuing publication Land quisition of information is at least one de Communications, mark 435 U.S. at gree unlawful, being closer to because if (“[w]e 98 S.Ct. at 1540 are not here con proven, reporter The Call and its possible applicability cerned with the have report known that the confidential statute to one who secures the information unlawfully acquired. been by illegal divulges means and thereafter recognize We parties dispute it”). Mutchler, Terry whether reporter who however, recently, More hinted Court obtained the reports, actually required that the Daily Mail line of cases took them simply copies herself or received sought that “the truthful information to be from an unnamed state actor. While the published lawfully must have been ac presence necessary of a state actor is here —Co., quired.” v. Cowles Media Cohen to the Scheetzes’ section 1983 cause of U.S. -, 115 L.Ed.2d 586 action, reporter whether The Call’s or the (1991) (holding that the first amendment took, report state actor does not alter prohibit plaintiff does not from recover my determination of the first amendment ing damages promissory estop- under state value. There is evidence to show that Ter- pel against newspaper publication ry Mutchler was before the notified offend- information). newspaper published ing press reports article went to political the name of source violation of possession were confidential and that her reporter’s promise preserve its the confi prov- of them was unlawful. If this fact is at -, dentiality of the source. Id. en, The Call then would have been on no- Relying S.Ct. at 2516-17. on cases eschew reports tice that the were in fact confiden- premise that the first amendment unlawfully acquired. tial and grants press immunity liability from I would conclude that the fact that The arising general applicability, out of laws of acquired private Call confidential informa- Court concluded “enforcement of concerning tion the Scheetzes’ life general against press such laws is not against unlawful means militates subject scrutiny to stricter than would be its, awarding The Call the or its applied benefits against per- to enforcement other affording -, agents’, wrongdoing great even organizations.” sons Id. at weight I to first amendment values. As this S.Ct. at 2518. find instructive this addi- demonstrates, ample case The Call had law- tional statement: acquiring ful means of the information. Also, Respon- it is not at all clear that Had The Call obtained the same informa- “lawfully” dents obtained Cohen’s name means, by any of these lawful case, purposes at least for example, by interviewing sources whom publishing it. Unlike the situation in The had confided the information Star, rape Florida where victim’s pursuing police disclosure of the confi- through name was obtained lawful ac- through Pennsylvania dential police report, respondents cess to ob- Law, Right to Know 65 Pa.Cons.Stat.Ann. only by making tained Cohen’s name 66.1, (Purdon’s Supp.1991), seq. et 1959 & promise did not honor. jeopardized it its first dissenting opinions suggest then would not law, Daily press subject amendment interest. any should See Smith Mail, (pro- including copyright example, at 2667 law for any degree hibiting liability newspaper which in ob- fashion or by inter- confidential tained Kithcart, HARRIS, witnesses). Drawing bright Jona Jesse viewing Martin Ransome, Cold, Lewis, Roy acquisition eliminates Carol at unlawful than line Whitting in Cummings, Raymond liability each criminal need to establish John Jones, serve, in the ton, would also This rule and Derrick case. press, by the discipline of internal absence accurate, in public interest to enhance REEVES, capacity as in her official Joan encouraging as as reporting well verified Department of of Commissioner information. of acquisition lawful City Philadel- of of Human Services in of favor Weighing the balance Campbell, phia; F. Labora Rev. Albert because privacy interest Scheetzes’ Barber, Bennett, M. D. Allen M. James unlawfully obtained Call Mendel, Hornblum, Donald J. Mark M. eliminating bright line draws Padova, ca- his each official in decision-making editorial for ad hoc need the Board of pacity of as a member self-censorship specter of triggers the Philadelphia Prison Trustees of values. first amendment antithetical Gallagher, System; J. Patrick Evans, Ollman Superintendent capacity of as official decisions, of (D.C.Cir.1984)(“predictability system; Philadelphia Prison Willie in an area of importance is of crucial which capacity Gray, as Warden in his official val upon Amendment touching First Grooms, Prison; Holmesburg Press determination ues, when the is enhanced capacity as Warden in his official legal stan according to announced made Moore, Center; Harry the Detention public case law body and when dards capacity as Warden his official examples of the man published furnishes Corrections; White, James S. House of standards are these ner Managing capacity Di- as in his official 1127, 105 denied, 471 U.S. applied”), cert. City Philadelphia; Hon. in the rector 86 L.Ed.2d Goode, capaci- in his official W. Wilson City Philadelphia; Mayor ty first weighing This Philadelphia. City comports with the interests amendment pri- expectations of Abraham, Attorney of Lynne District they, others steps vacy and the County, Proposed Philadelphia situated, might take to ensure the similarly Intervenor, Appellant. private facts. 91-1068, 91-1194. Nos. sum, In Appeals, United States Court guarantee protected by the constitutional Third Circuit. acquired, I would unlawfully privacy, is does not first amendment hold Argued Sept. against civil press a defense afford 4, 1991. Oct. Decided summary liability. I would vacate Rehearing In Banc Rehearing and for further order remand judgment 31, 1991. Denied Oct. respectfully dissent. I proceedings.

Case Details

Case Name: Rosann C. Scheetz Kenneth L. Scheetz, Jr. v. The Morning Call, Inc. Terry L. Mutchler John Doe And/or Jane Doe

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 31, 1991

Citation: 946 F.2d 202

Docket Number: 90-1783

Court Abbreviation: 3rd Cir.