*1 DIAMOND SHAMROCK REFINING COMPANY,

AND MARKETING

Petitioner,

Roque MENDEZ, Respondent.

No. D-1090.

Supreme Court of Texas.

Oct. 1992.

Rehearing Overruled Dec. 1992.

Concurring Dissenting Opinions

on Motion Rehearing for Dec. Hall, Antonio,

W. Wendell peti- San tioner. Lopez, Antonio,

Jo Chris G. San Ruben Pena, Hearn, Weslaco, R. Michael E. respondent.

OPINION PHILLIPS, Chief Justice. action,

In this employee claims that his employer committed the torts of “false light” and intentional infliction of emotional distress circulat- ing information about his termination among employees. his fellow The trial judgment court rendered jury on a verdict for the on both theories. The appeals court of sup- held that no evidence ported the jury’s verdict as to intentional distress, infliction of emotional but it af- judgment firmed the of the trial court un- der light theory. 809 S.W.2d 514. judgment We reverse the of the court of appeals and remand for a new trial on light theory. Mendez’s false I Roque operator Mendez was a chief at refinery Diamond Shamrock oil Rivers, Three Texas. The evidence most sustaining jury’s favorable verdict is 4, 1985, September that on Mendez was ordered supervisor up his to clean debris area, that had been left in his work includ- ing loose by carpenters. nails discarded angry being assigned He became task, clean-up perceived which he to be *2 scope gence, ordinary privacy comprising outside the of his duties. and invasion embarrassing personal cleaning, he Mendez some the disclosure of While was threw nails, placing facts and the in a false of the the value of which was less public eye. dollars, Mendez did not put than five into a box and claim, pursue presumably his defamation bag. placed into his lunch He then box appli- bring because he did not it within the bag cleaning. on a shelf he finished while Tex. one-year period. cable limitations heWhen was finished he went to the clock The trial Civ.Prac. & Rem.Code 16.002. house, company property, on which was jury on questions court submitted to the table, out, placed bag on a clocked and liability: intentional two theories refinery. left the infliction of emotional distress and false departed, security After Mendez offi- respect privacy. With bag cer found his lunch and noticed that it light, submitted court the follow- security contained the nails. The staff re- ing question jury: to the ported finding Billings, Wayne Hu- Defendant, Did the Diamond Sham- Manag- man Resource and Administrative rock, by through employees, and its in- er, Hoffman, Manager. and John Plant Plaintiff, Roque vade the Billings telephoned Mendez and asked him Mendez? refinery. to return to the Confronted You are instructed that the Defendant Hoffman, Billings and Mendez identified if may invade the of the Plaintiff bag his own. When asked to ex- publicized placed it matters which him plain, Mendez described how he had be- public a false before the that would angered by supervisor’s come his order and per- highly offensive to a reasonable simply rudeness and how he threw the son. nails into the box and threw the into box objected ques- Diamond Shamrock bag. Hoffman then told Mendez that tion, arguing that it omitted the “actual bag company contained property and light, malice” standard for false an essen- appeared stealing. that it that Mendez was tial element of Mendez’s cause of action. When Hoffman asked Mendez whether The objection. trial court overruled this agreed, replied, Mendez guess “I so.” jury found Mendez on both Hoffman then terminated Mendez and left and intentional infliction of emo- Mendez, Billings the room. Left alone with counts, $460,- awarding tional distress him why simply asked Mendez had not asked $260,000 damages: past 000 in “gate pass” for a to take the nails off the $100,000 wages, future lost for mental an- know, premises. replied, Mendez “I don’t $100,000 guish, reputation. for loss of Wayne. guess I I up.” messed judgment The trial court rendered spread Word of Mendez’s termination jury verdict. quickly Many people Three Rivers. with appeal appeals, to the court Dia- On spoke during whom Mendez the next few argued the trial court mond Shamrock weeks, including potential employers, knew by failing erred to include the element of stealing. that he had terminated for jury actual in its instruction to the malice result, As a he claims to have suffered privacy. on false significant financial and emotional set- appeals judgment, court of affirmed the backs. holding negligence, rather than actual Mendez filed suit Diamond Sham- malice, should be the standard 1, 1987, September nearly rock on two by private suits individuals. 809 S.W.2d at years original his termination. In his Further, after Diamond Shamrock could defamation, petition, alleged he breach of negligence of a complain of the absence contract, dealing, instruction, faith and unfair requested bad since it had not one. rights. Although violation of certain constitutional also held that there was the court Later, inten- he added claims for malicious no evidence that Diamond Shamrock termination, wrongful tionally intentional or reck- inflicted emotional distress on Men- dez, distress, negli- judgment of the trial less infliction of emotional it affirmed See, court because it rested on alternate e.g., Dodrill v. Arkansas Democrat grounds. Ark. 590 S.W.2d 840 denied, cert. Little Newspapers, Rock Inc.

II Dodrill, 1076, 100 S.Ct. This expressly court has never held that Goodrich v. Water *3 a tort light bury Republican-American, Inc., for false invasion of privacy Texas, 107, exists in although recog- (1982); we Conn. have A.2d 1317 McCall v. nized that Co., it is one of the usual four cate- Courier-Journal & Louisville Times gories private actions for (Ky.1981), denied, 623 S.W.2d 882 cert. privacy. 975, 2239, Industrial Foundation 72 L.Ed.2d 849 (1982); South v. Texas Industrial Accident McCormack v. Oklahoma Publish Board, 668, (Tex.1976). 540 S.W.2d Co., Al- ing (Okla.1980); 613 P.2d 737 Gill v. though urge reject Co., amicus curiae1 us to Curtis Pub. 38 Cal.2d 239 P.2d tort, light we do not reach this Eastwood v. Cascade Broad issue, as adequately pre- it has not been casting 106 Wash.2d 722 P.2d parties. sented assuming Even But see Jones v. Palmer availability action, Communications, this cause of Inc., howev- 440 N.W.2d er, Mendez (Iowa 1989), would not be entitled to recover Crump Beckley News us, on the record before as he did not papers, 320 S.E.2d W.Va. submit all the essential elements of the adopting negligence standard. light tort. Thus, if the light tort of false invasion Texas, requires exists in it a show- (Second) The Restatement of Torts ing of actual malice as an element of recov- 652E defines the false in ery. Because the trial court’s instruction requirement clude an actual malice as fol omitted an element of Mendez’s cause of lows: action, properly pre- Diamond Shamrock gives publicity One who to a matter con- by objecting. served error Tex.R.Civ.P. cerning places another that the other be- 274, 279. See Moulton v. Alamo Ambu public fore the in a subject Serv., (Tex. lance 449-50 liability to the other for his 1967). Since Mendez failed to establish an privacy if essential element of the false cause of (a) which the other was action under the pre Restatement and the placed highly would be offensive to a ponderance law, of case ap court of person, reasonable peals’ judgment in favor of Mendez on this (b) knowledge the actor had of or acted claim must McKinley be reversed. v. Stri disregard in reckless falsity as to the pling, (Tex.1989). 763 S.W.2d publicized of the matter and the false jurisdic- Because of the conflict between other would be regarding proper tions standard of con- placed. duct, yet and because this Court has not Moreover, the appeals Texas courts of recognized tort, disapproved either or applied this tort have we remand this cause of action for a new standard, actual malice see v. Den Clarke justice, giving trial in the interest Men- Publishing ton 793 S.W.2d opportunity prove dez an actual malice (Tex.App. denied); Worth — Fort opportunity Diamond Shamrock an Post, Covington Houston object theory recovery to the in its en- (Tex.App. [14th Dist.] — Houston tirety. Tex.R.App.P. writ); Snow, no Gill v. writ), concurring no dissenting opinions jurisdictions. have most courts in other assert that we should not remand for a Cities-ABC, Inc., jointly by 1. This amicus brief was Company, Capital submitted Press, Television, Inc., Reporters Committee for Freedom of the KTRK The Fort Worth Star- Press, Corporation, Telegram, the A.H. Belo the National Associa- The Associated The San Anto- Broadcasters, Sub., Light, tion of the Houston Chronicle nio and Freedom T.V. Inc. Westgate, how- expressly nized under Texas law. trial on false without new ever, legal theory, exists in Texas. bad-faith deciding whether the tort the uncertain inher- appreciate condemning authority, the difficulties nev- delay by we had While the ac- disposition, in our we believe any ent by the er been advanced parties compel such a result. tions of the defendant had stage case. Thus the of the Diamond Shamrock did part, For its object to the given opportunity to tort in the challenge the existence of action. Under of the cause existence court, appeals, court of trial circumstances, it have been would those error even in this Court. point distinct a second subject the defendant to unfair to Moreover, Diamond Shamrock nor neither Here, consistently asserted trial. Mendez argued the adequately briefed or Mendez light, yet Diamond Sham- a claim for false It ill serve the State’s issue to us. would challenge the existence rock failed *4 tort to decide whether this jurisprudence This failure appropriate in an manner. Neither, of sparse on such a record. exists precludes the Court by Diamond Shamrock fault, since, course, Mendez without de- is exists; deciding the tort whether spite timely objection, he failed to establish subject Dia- it is not unfair to therefore malice, an essential element of false actual to a second trial on an mond Shamrock in light if it does exist Texas. On is theory. Westgate uncertain The rule alone, concurring dissenting basis sound, control under these but it does not judgment against justices would render unique circumstances. out, dissenting opinion points him. As the however, of false the elements Ill In addi- definitively established. not been law, minority case we note that tion to appeals reversed the The court of following Restatement 652E contains § judgment that Diamond Sham trial court's caveat: dis intentionally inflicted emotional rock position takes no on wheth- The Institute Mendez, finding no evidence tress on any circumstances under er there are cross-point, Mendez By infliction. such an recovery can under which be obtained holding. urges us to reverse this if the did not know of this Section actor (Second) of Torts The Restatement disregard reckless as to the or act with inflic- the tort of intentional defines publicized matter and the falsity of emotional distress as follows: tion light in the other would be outrageous con- by extreme and One who regard placed negligent in but intentionally recklessly causes duct matters. these distress to another severe emotional Also, Appeals the United States Court dis- liability for such emotional subject to Circuit, in a false case for the Fifth tress. ... law, predicted that this Court under Texas tort, recognized this but a never We have pre- if adopt negligence standard would appeals have Texas courts of number of v. Hustler sented with the issue. Wood so, see, Automobile (5th e.g., Tidelands done 736 F.2d Magazine, (Tex. Walters, Cir.1984). uncertainty, the 699 S.W.2d Because of this Club v. n.r.e.); alternative, among sev- writ ref’d objectionable App. least — Beaumont choices, Dean, remand for a new is to eral bad Buskell v. deciding 1989), expressly whether rev’d on other (Tex.App. trial without — Austin in (Tex.1991); tort exists Texas. Ser grounds, Greenhalgh, Ins. Co. v. Lloyds vice concurring dissenting justices 1989), State, holding Westgate in v. point to our — Austin S.W.2d 938 grounds, 787 on other rev’d we refused 843 S.W.2d 448 where many in other (Tex.1990), courts as have to allow a justice in interest of remand in this not decide need recog- jurisdictions.2 We legal theory not pursue (Alas- Wells, Cotter, (Ala. 1988); 749 P.2d Local Teamsters Gallups So.2d 585 2. See Texas, sort, in nied case whether tort exists be- behavior of this there would Mendez employment-at-will cause failed to offer more than a left of be little doc- scintilla of evidence of an essential element if employer’s public trine statement of tort as it has been was, long the reason for termination so lower courts of this state and in courts of reason, employee disputed in and presence jurisdictions, other of outra- of itself some evidence that a tort of inten- geous conduct. tional infliction of emotional distress had appeals committed. The court of did argues

Mendez that Diamond Sham- denying recovery not err Mendez on this rock’s tortious ter- conduct occurred ground. him, minating by falsely depicting him community if Men- as a thief. Even IV true, however, charges

dez’s are taken as sufficiently outrageous this conduct is not reasons, foregoing For the we affirm the to raise a fact issue.3 Restatement § appeals against judgment of the court of d, reaching comment describes conduct ground Mendez on the of intentional inflic- “outrageousness” necessary level of for li- tion of emotional reverse the distress. We ability for intentional infliction of emotional judgment appeals of the court of favor distress these terms: ground light, of Mendez on the of false Liability has been found where the remand claim to the trial court for a *5 that outrageous conduct has so in char- new trial. acter, in degree, go and so extreme as to beyond possible decency, all bounds of HIGHTOWER, J., opinion. concurs with atrocious, regarded and to and be GONZALEZ, J., and concurs dissents utterly communi- intolerable a civilized CORNYN, J., opinion joins. with ty- is Diamond There no evidence that Sham- HECHT, J., concurs and dissents with rock’s conduct met this standard. We need opinion. agree Diamond not condone or with Sham- that, DOGGETT, rock’s actions to conclude as a matter opinion in dissents with law, being “beyond GAMMAGE,JJ., all they fall short join. which MAUZY and “atrocious,” decency,” possible bounds of HIGHTOWER, Justice, concurring. in a com- “utterly and intolerable civilized munity.” may obviously join opinion judgment there be I the court’s While However, accompa- separately I instances where a termination is this cause. write 38, kolski, 150, Revlon, Inc., (1984); 1988); N.E.2d v. 153 Ariz. 734 10 Ohio St.3d 462 392 ka Ford 131, Co., Co., (1987); May Dept. Hall v. Stores 292 Or. 637 Harris v. Arkansas Book P.2d 580 157, Hutson, 353, (1981); (1985); Churchey P.2d 126 Ford v. 276 S.C. v. 287 Ark. 700 S.W.2d 41 Knudson, (1981); Co., (Colo. 1988); Wangen 276 S.E.2d 776 v. 428 Adolph Coors 759 P.2d 1336 Harward, (S.D.1988); Ellis, 243, N.W.2d 242 Pentecost v. Petyan A.2d 1337 v. 200 Conn. 510 Smith, (Utah 1985); P.2d Sheltra v. 136 (1986); King, 699 696 So.2d Eastern Airlines v. 557 574 472, (1978); 78, Womack v. El (Fla.1990); Vt. 392 A.2d 431 Fahey, 126 McGrath v. Ill.2d (1974); dridge, (1988); 215 Va. 210 S.E.2d Vinson v. Ill.Dec. 533 N.E.2d 806 Corp., Crown Zellerbach Dist., Contreras v. Community School 360 N.W.2d Linn-Mar (1977); P.2d 1173 Cook v. Wash.2d (Iowa 1984); Foy Construc v. L.R. Naufeldt Heck’s, Inc., 176 W.Va. 342 S.E.2d 453 Co., (1985); P.2d 1194 tion 236 Kan. Polk, (1986); (Wyo. Mummery v. 770 P.2d 241 Rice, (Ky.1984); Staples v. 671 S.W.2d 247 Craft 1989). Co., (Me. Bangor Hydro-Electric 561 A.2d 499 v. K.K., 1989); B.N. v. Md. 538 A.2d 1175 (1988); Although alleges brief Dia- Agis Mendez in his v. Howard Johnson 371 Mass. (1976); employ- all of his fellow Newberry Allied mond Shamrock "told N.E.2d 315 v. thief, (1989); falsity Stores, Inc., spread to the P.2d ees he was a 108 N.M. community large,” reflects Sugar the direct evidence v. Great Western 219 Neb. Gall Shamrock, through Billings (1985); King’s Depart Diamond 363 N.W.2d 373 West Hoffman, supervisors Store, Inc., plant informed the S.E.2d 621 ment 321 N.C. Royal, operator, Clayson Freight, about Way and one chief Williams v. Lee Motor (Okla.1984); Reamsnyder Mendez’s termination. v. Jas- 688 P.2d 1294 right under the Texas Constitution remain a vital express my continuing support of right protection of Texans. for the all privacy under the Texas Constitution. Justice, GONZALEZ, concurring and Employee’s Union v. Texas State dissenting. and Mental Dep’t Mental Health Texas (Tex.1987), Retardation, 746 S.W.2d 203 disposition I the Court’s re- concur with dissent, this court cited infliction of garding tort of intentional guarantees However, disagree that the Texas Constitution I emotional distress. right a strict trial and articulated that this should be remanded for case not governmental intru- on a cause of action that we have standard of review expressly recognized in Texas. As the sion: recently Westgate, Court stated Ltd 6, 8, 9, provisions of these Each [sections State, (Tex.1992): “We 1 of the Texas 19 and 25 of article located no other case where this gives rise to a concomitant Constitution] losing Court ordered a remand to allow the doubt, privacy. not there- zone of We do legal recog- party pursue theory fore, that a of individual is Indeed, nized under Texas law. such a “general, implicit among great, those remand would not be the interest principles liberty and free essential prevailing justice, subject as it would government” established the Texas legal party to a second trial on an uncertain Rights. Bill of Texas We hold that the theory.” applied today should Westgate protects personal privacy Constitution render, remand, rather than this case. intrusion. This unreasonable yield only should when plurality opinion leaves the funda- government can an in- demonstrate that mental issue of the existence of the tort of reasonably privacy completely trusion warranted for the compelling governmen- of a important achievement unresolved. I would reach this *6 issue, objective reject tal that can expressly be achieved this tort because intrusive, duplicates tort of less more reasonable means. it defamation many procedural lacks of the limitations (citations omitted). In Id. at 205 an unani- accompany that a cause of action for defa- opinion, mous this court held “that mation. Department’s polygraph policies impermis- sibly privacy rights protected by violate The common law action for invasion of Texas Constitution.” Id. at 206. I have privacy1 developed on the of an was basis any attempts article, resist early will to trivialize or law review Samuel D. Warren right. Brandéis, Right Privacy, otherwise weaken this fundamental D. The to & Louis (1890).2 imperative right privacy It is that the to Harv.L.Rev. 193 Warren and right encourages 1. The dissent bemoans the “assault on or the or coerces the actions of state right privacy;” privacy Yaretsky, states that the "en- the individuals. See Blum v. 457 U.S. (1982). compasses range personal rights, broad of 102 S.Ct. 73 L.Ed.2d 534 couple's alleged determination to use from married Mendez has not that Diamond Sham- actor, contraceptives to a woman’s decision whether nor could he under the rock is a state pregnancy;" her and claims or not to terminate facts of this case. right intricately privacy that “the of woven application of the state action doctrine to The fabric of our and com- into the constitutional the Texas Constitution has not been conclusive- mon law." 844 S.W.2d at 213-214. Such claims However, ly established this Court. even grossly writ- mischaracterize the effect of the argument assuming for the sake of that right recognized ings today. privacy The right privacy constitutional does not Texas the United States Constitution in Roe v. under action, alleged require Mendez never that state Wade, 705, 410 U.S. rights his constitutional were violated. Connecticut, (1973), and Griswold v. Therefore, absolutely nothing this case has to do 14 L.Ed.2d 510 is not privacy rights with constitutional —the implicated in this since Diamond even case common-law claim. claim before us is a purely private corporation. Shamrock is Fed- Barron, guarantees only apply Warren and Bran 2. But see James H. eral constitutional deis, guarantees Right Privacy, do not The 4 Harv.L.Rev. "state actors" —such Citation, (1890): apply against private Demystifying a Landmark individuals unless the indi- (1979) (questioning governmental performing function 892-93 viduals are Suffolk U.L.Rev. (2d purpose Brandéis stated their that writ ed. Dean Prosser 1955). of Torts ing the professed action, article was “to consider whether reservations about this existing principle law affords a which noting in an influential law review article properly protect pri can be invoked to apparently and Brandéis Warren did individual; and, does, vacy of the if it what part not intend a false tort as protection the nature and extent of such privacy. Prosser, William L. is.” Id. at 197. Dean Prosser described Privacy, (1960). Cal.L.Rev. methodology their as follows: believe, protestations Others his to the con-

Piecing together decisions in old which trary, merely Dean Prosser relief had been afforded on the basis messenger, indeed, progenitor, defamation, prop- or the invasion of some the doctrine. One commentator writes: erty right, or a breach of confidence taxonomy, efforts at creative [Prosser’s] contract, implied concluded the article applied amorphous body to the rather reality that such cases were based judicial opinion privacy, a real sense upon principle enti- a broader which was “invented” the false sin- separate recognition. princi- tled to This gling previously unacknowledged out ple they privacy.... called the features common to most of the nonad- Prosser, Privacy, William L. 48 Cal.L.Rev. vertising appropriation This cases ... (1960). ironic, result is since Prosser himself was “right privacy” slowly gained ac- skeptical desirability about ceptance among courts the states. See light privacy action. By Prosser had Id. 385-88. Dean Zimmerman, Light Diane Leenheer False separate injuries three that had identified Privacy: Light Invasion “right priva- under the Failed, (1989). 64 N.Y.U.L.Rev. upon plaintiff’s cy:” “intrusion ... Kalven, Jr., Harry Privacy in See also affairs,” to be let alone his own Tort and Brandeis Law—Were Warren “publicity given private information Contemp. Wrong?, 31 Law & Probs. plaintiff,” widely about the and the most (1966). Nevertheless, n. 41 the tort was recognized injury, “appropriation of some adopted soon and enshrined in the Restate plaintiffs personality element of the for a (Second) ment of Torts 652A commercial use.” William L. PROSSER, However, recognize any op op Texas did not (1st Torts the Law Handbook types the four until of invasion of 1941). 1955, however, By he had ed. *7 Atkinson, our in Billings decision amended his treatise to include a fourth (Tex.1973).3 In tort, Billings, S.W.2d 858 light, privacy which made “ha[d] defendant, telephone company employee, a amorphous appearance in several a rather cases,” placed tap plaintiff’s had on the publicity places wire and consists of telephone apparent- residential line and had plaintiff necessarily in false “the plaintiff’s personal telephone defamatory position public eye....” ly listened to affording In William L. conversations. Prosser, the Law Handbook of recognized by response article was a the common law of Texas or the the tale of whether the uncomplimentary newspaper legislature, of Boston a series statute and libel describing wedding articles daughter). of Warren’s (recodified at art. 5430 TexCiv. [Tex.Rev.Civ.Stat. 73.001)] already granted a § & Rem.Code Prac. publication of written cause of action for "the Co., Valley 3. In Milner v. Red River printed statements which blacken ‘the memo 1952, (Tex.Civ.App. — Dallas Thus, recovery ry of the dead.’” Id. at 229. writ), newspaper published arti a Sherman an Harris, was denied. See also Hansson revealing recently had cle that a man who 1952, (Tex.Civ.App. S.W.2d 600 — Austin been indicted the killed in a traffic accident had n.r.e.); F.2d v. Pabst Sales ref'd O’Brien previous year grand theft. His survivors denied, (5th Cir.1941), cert. 315 U.S. newspaper, alleg brought an action (1942) (noting 62 S.Ct. 86 L.Ed. 1220 truthful, that, although ing invaded the article right yet recognized "embarrassment, that no Texas cases had privacy their and caused their privacy). Id. at of humiliation and mortification." right privacy not been court held that the had relief, Foundation, majority juris- of trial have never em we noted that we recognized dictions in the United States an braced nor the fourth and final independent cause of action for the inva- type privacy, of invasion of the “false right privacy, sion of and held that “the of light” should tort. 844 S.W.2d at 200. We privacy legal injury for constitutes a today. decline to do so granted.” remedy will Id. at 860. We (Second) Torts The Restatement of explained that: light 652E defines false invasion § intensity complexity the increased privacy as follows: development modem and the civilization gives publicity con- One who to a matter spiritual have ren- man’s sensibilities cerning places another that the other be- publicity dered man more sensitive to public subject fore the in false is privacy, and have increased his need of great technological improve- liability the other for of his while the ments in the means of communication privacy if: subjected have more and more the inti- (a) the false in which the other was exploitation private macies of his life to placed highly would be offensive to a pander those to commercialism who person, reasonable curiosity. prurient and to and idle A (b) knowledge the actor had of or acted legally privacy enforceable is disregard falsity in reckless as to the proper protection against deemed to be a publicized matter and the type upon per- of encroachment in which the other would be sonality of the individual. placed. (quoting Privacy

Id. 62 AM.JuR.2d (1962)). Despite questionable origins, its recognized by tort has been at least

Billings category falls into the first jurisdictions.5 it eleven Twice has been developed by Prosser approved by Supreme the United States recognized by the Restatement: an Time, Hill, Court: Inc. v. 385 U.S. plaintiffs intrusion into the seclusion. We S.Ct. 17 L.Ed.2d 456 and Can expressly recognized have also the third City Publishing trell v. Forest type right, to “freedom 42 L.Ed.2d 419 public embarrassing pri disclosure of Hill, considered a Court vate facts.” Industrial Foundation imposed New York statute the South v. Texas Industrial Accident Board, (Tex.1976), “actual malice” standard on the false denied, action, Cantrell, and in the Court reaffirm cert. (1977).4 Although ed this standard for a common we acknowl law edged categorization brought the Prosser under Ohio law. Indus action type privacy right, protecting Waterbury Republican-American, 4. The second Goodrich v. likeness, against appropriation of a name or 188 Conn. 448 A.2d *8 many jurisprudence Co., well established in the of (1982); Washington Harrison v. Post 391 Treece, states. See James M. Commercial Ex 781, (D.C.1978); Larsen, Winegard A.2d v. 784 Names, Likenesses, ploitation and Personal 816, (Iowa 1977); 260 N.W.2d 822 Froelich v. Histories, (1973); 51 Tex.L.Rev. 637 Pavesich v. 357, Adair, (1973); Kan. 516 P.2d 993 213 190, Co., England New Insurance 122 Ga. 50 Life v. & Louisville Times McCall Courier-Journal 68, Michigan (discussing S.E. 75-81 Co., 882, (Ky.1981), cert. 623 S.W.2d 887-88 predicting New York cases and future wide 2239, denied, 975, 102 S.Ct. 72 L.Ed.2d 456 U.S. tort). spread acceptance of this Texas (1982); Publishing 849 McCormack v. Oklahoma Kimbrough recognizing case this tort is v. Coca- 737, Co., (Okla.1980); Crump v. 613 P.2d 740 Cola/USA, 719, (Tex.Civ. 721-22 521 S.W.2d 699, Beckley Newspapers, 173 W.Va. 320 1975, n.r.e.). App. writ ref'd See also — Eastland 70, Co., (1984); Gill v. Curtis Pub. 38 S.E.2d 83 Busch, Inc., 102, F.2d v. Anheuser 873 Benavidez 273, (1952); P.2d 630 Eastwood v. Cal.2d 239 Cir.1989) law). (5th (applying 104 Texas 466, Co., Broadcasting 106 Wash.2d 722 Cascade Co., Democrat 265 Ark. 5. See Dodrill v. Arkansas 1295, (1986); Todd v. South Carolina P.2d 1296 628, 840, (1979), S.W.2d 845 cert. denied sub 590 284, Co., 216 S.C. 278 Farm Bureau Mut. Ins. Dodrill, Newspapers, Inc. v. 444 nom. Little Rock (1981). S.E.2d 607 1076, 1024, (1980); L.Ed.2d U.S. 62 759 206

The false privacy Co., 433, action 55 941, 945, N.Y.2d 449 N.Y.S.2d has also been by several other 1319, 434 N.E.2d denied, 1323 cert. Texas appeals. courts of v. Wilhite H.E. 1146, 103 459 787, S.Ct. 74 L.Ed.2d 994 Co., 1, 812 Butt (Tex.App 6 (1983); Yeager 20, v. Local Union . —Cor Int’l pus 1991, writ); Christi no Clarke v. Den Teamsters, Brotherhood 6 Ohio St.3d Co., 329, ton Publishing 793 S.W.2d 331 369, 666, 453 (1983); N.E.2d see (Tex.App. 1990, denied); Worth — Fort Int’l, Ltd., also Falwell v. Penthouse Covington Post, v. Houston 743 S.W.2d F.Supp. 1204, (W.D.Va.1981) (“[t]he 345, [14th Dist.] — Houston Virginia courts of simply recognize do not 1987, writ); no Bonding Agency National such action”). a common law cause of To Demeson, (Tex. day, join jurisdictions we should these App. writ); Snow, no Gill v. — Dallas declining recognize the false inva 224 (Tex.App. privacy sion of action. 1982, writ). cases, no In all of these either I recognize that Diamond Shamrock did application for writ of error was filed challenge not validity of the false or Court the court rejected applica invasion filing action until the denied,” tion with the notation “writ so its application for writ of error in this approval that our given any never Thus, Court.6 preserve it did not error as Also, holdings. these several federal point to this under Appellate Texas Rule of interpreting courts permit Texas law have 52(a). However, Procedure this Court has ted a cause of light. action for false See traditionally willing to address issues Co., Big Moore v. Picture 828 F.2d jurisdiction, fundamental to our such as the (5th Cir.1987); Maga Wood Hustler Cir.1984), recognition of common law causes of action zine, Inc., (5th 736 F.2d defenses, assigned whether as error or denied, 1107, 105 rt. 469 U.S. S.Ct. ce See, not. e.g., Klingensmith, McMillen v. (1985); 83 L.Ed.2d 777 Braun v. (Tex.1971) (abolishing S.W.2d 193 Flynt, (5th Cir.), F.2d cert. rule); denied, “unity of release” Farley v. 469 U.S. MM (Tex.1975)(abol L.Ed.2d Cattle 529 S.W.2d 751 ishing “assumption doctrine); of risk” Nevertheless, remains the Caudle, (Tex. Bounds v. 560 S.W.2d 925 least-recognized and most controversial as- 1977)(abolishing interspous the doctrine of pect of invasion privacy. See BRUCE W. al immunity torts). for intentional We can Privacy 11.4.1 at 567 SanfoRd, Libel and premise recognition of a cause of (2d 1991) (“Of ed. Dean Prosser’s four action or defense in our common law on the torts, types light’ the ‘false vagaries litigant’s compliance of one full generated school has the most criticism one case with our appellate preservation elusive, amorphous nature”); because of its rules. Zimmerman, Diane Leenheer supra, at 452 (“the may wiser course be for states to reject We should the false light altogether”). eliminate false first, tort for two reasons: be- largely duplicates cause it jurisdictions rights

A of other other number have de recovery, defamation; adopt particularly clined to tort. and sec- ond, Renwick v. because it many procedur- News & Observer lacks 405, 412, 310 N.C. al accompany S.E.2d cert. limitations that actions for denied, defamation, unacceptably increasing S.Ct. thus already Sullivan v. the tension that Pulitzer exists between' *9 Co., Broadcasting 475, speech 709 S.W.2d 479-80 free guarantees constitutional and (Mo.1986); Arrington v. New York Times tort law. challenge validity light

6. A to the Capital false Houston Chronicle ies-ABC, Inc., Cit- Television, Inc., by group action was also raised in this Court KTRK the Fort Press, comprising Reporters Star-Telegram, amicus curiae the Worth Associated the San Press, Sub, Committee for Freedom of Light, A.H. Belo Antonio and Freedom T.V. Inc. Broadcasters, Corp., National Association of KFDM-TV. d/b/a/

207 Duplication virtue, honesty, repu- Causes of Action son’s or integrity, Other publish tation or to the natural defects of action, light The false as it has been anyone thereby person expose and Restatement, by permits defined recov- public hatred, ridicule, injury. or financial ery injuries by publicity caused that unreasonably places plaintiff in a false Slander, defamation, spoken form of is light (Sec- public. before the Restatement by statute, recog not codified but has been ond) (1977). Although of Torts 652A not § defamatory nized at common “a law to be explicitly required Restatement defi- by the orally published party statement to a third nition, jurisdictions, including most the low- justification or Re without excuse.” See er recognized Texas courts have (Second) (1977); statement of Torts 568 § action, require if that a statement be false Hutton, Tucker, Inc. v. Shearson Lehman cognizable light it is to be under the false 914, (Tex.App. Corpus 921 — doctrine. See v. Denton Publish Clarke 1991, Thus, w.o.j.). Christi writ dism’d like 329, ing (Tex.App.— 331 light, false defamatory statements must be 1990, denied) (false light Fort Worth false in order to be actionable. See Re action “concerns untrue statements about a (Second) (1977); statement of Torts 558 § 222, party”); Snow, 644 Gill v. 224 generally see Bruce W. Sanford, Libel and 1982, writ) (“evi Privacy 1991). (2d 201-39 ed. support dence will not a cause of action for Furthermore, of damages the elements light false because we believe no false light that have been false publicized”); statements of fact were ever actions are Cir.1986), similar to those awarded for Diaz, (2d F.2d Machleder v. 801 46 defamation. The principal element actu- denied, 1088, rt. ce 1294, damages typical- al for false claims is (1987)(in 94 L.Ed.2d 150 Jersey, New ly anguish, (Sec mental see Restatement truth is an to the absolute defense ond) (1977); of Torts 652H v. Hus Wood light action); § D. Sack, Libel, Robert Slan Magazine, (5th F.2d tler 736 1084 (1980) 394 deR, and Related Problems Cir.1984), denied, 1107, cert. U.S. 105 (“[t]he false”). statement must be (1985); S.Ct. 83 L.Ed.2d sensible, Braun v. falsity requirement considering is (5th Cir.), Flynt, 726 F.2d private that the cert. “revelation of facts” inva- denied, sion of purports grant tort relief

for the physical disclosure of true statements illness adversely subject. plaintiff’s affect But see to the harm commercial interests Emerson, Thomas I. Right Privacy recognized. also See William L. Press, Prosser, Freedom the Harv. C.R.- Privacy, 48 Cal.L.Rev. (the C.L. L.Rev. truth or Donaldson, (1960); Annotation, Russell G. falsity of giving liability statements rise to Light False Invasion y of Privac —Defens matter; rather, for false should not Remedies, 4th es 57 A.L.R. 311- cases should be treated the same essentially types These are cases). embarrassing as disclosure damages sought actions. defamation (Second) of Restatement Torts 620- §§ If recognize we were to a false tort supra, Bruce W. Sanford, Texas, duplicate largely it would several 431-54; Hutton, Shearson Lehman action, existing particularly causes of defa- many, all, if S.W.2d at 922. Thus Libel, is mation. which written defama- injuries tion, redressed is defined Texas Civil Practice & are also redressed Remedies defamation. See Ka Code 73.001 follows: n. pellas Kofman, Cal.3d expressed A is a libel defamation writ- Cal.Rptr. 369 n. 459 P.2d graphic ten or other form that tends to (1969)(“[sjince complaint n. 16 contains memory blacken the of the dead or that libel, specific cause of action living injure person’s reputa- tends to count, if intended person tion and thereby expose [as hatred, ridicule, superfluous should dis public contempt or count] missed.”). injury impeach any per- financial or to

208 light” may light overlaps privacy, plaintiffs also with

The false other, recognized, priva successfully often use libel or slander in some of the better Kalven, Jr., See, Harry instead); Wade, Pri cy e.g., torts. addition or John W. Defa and in Tort Warren vacy Right Privacy, Law — Were mation and the Contemp. Wrong?, (“the (1962) great Brandeis Law & Yand.L.Rev. potential (noting the majority of defamation actions can now be Probs. light appropriation); overlap of false and brought for invasion of ... Distributing Flynt Lerman v. privacy may action for invasion of come to (“while (2d Cir.1984) spe not F.2d defamation”); supplant the action for Wil complaint, [plain alleged in her cifically Prosser, Privacy, liam L. 48 Cal.L.Rev. presents a publicity] action tiffs good (1960) (“[t]here has been claim”). light Finally, as we classic overlapping deal of of defamation Atkinson, Billings observed in cases, apparently either ac and (Tex.1973), “some of lie”). tion, both, very often or will privacy interests have been afford practice, In the theoretical distinctions theo protection under such traditional ed and defamation have between slander, wrongful search ries as libel illusory. the six false proven largely Of seizure, wiretap eavesdropping and by Texas courts of cases considered into ping, other similar invasions brought, or could have appeals, all were personal affairs of an private business and brought, legal theory. under another individual.” (Tex. Snow, In Gill attempted A few commentators 1982, writ), the de App. no the theoretical differences be- delineate newspaper advertise fendant took out a tween false plaintiff a letter that had reproducing ment torts, particularly defamation. As other Develop Texas Water received from the one notes: accompanying The letter and ment Board. sought the interest defamation cases [I]n plain implied that comments defendant protected objective is the one of to be graft. Id. at political tiff was involved economic, political, or reputation, either granted no relief appeals 223. The court of priva- In personal, in the outside world. claim, however, plaintiff’s false on the is the cy cases the interest affected sub- publication was not disputed because person injury one of to the inner jective Likewise, granted no the court re false. cases, where issue defamation public disclosure the lief under intrusion or marketplace of falsity, is truth or Id. at 224. privacy. of invasion of ories furnishes a forum which the ideas false, publication was Because the cases, fought. In can be battle successful action would not have been libel marketplace simply accentu- resort to the light action thus afforded either. The false injury. ates the beyond what was plaintiff no relief Emerson, Right Privacy Thomas I. other invasion of under libel and available Press, 14 HaRV. C.R.- and Freedom the privacy theories. also L. Rev. C.L. H.E. Butt Wilhite v. L. Prosser, and Keeton on Prosser William writ), (Tex.App. Corpus Christi ed., (W. Page Keeton — the Law of Torts discharged job at plaintiff from his 1984). of other schol- But a number 5th ed. against brought suit grocery store. He light and defa- argued that false ars have conspiracy, invasion alleging civil the store indistin- nearly are identical even mation wrongful discharge, breach privacy, See, Sanford, guishable. e.g., Bruce W. contract, and defa implied express and/or 1991) (“Le- (2d at 567 ed. supra, 11.4.1 granted 3. The trial court mation. Id. at in a false placing someone gally, summary judgment defamation”); more than amounts to little defamation, went except all claims D. Sack, Libel, Slander, and Relat- Robert that the state jury found (1980) (where jury trial. the circum- ed Problems claim supporting his defamation for “false ments support an action stances would *11 true, Thus, essence, In defamatory. and thus not Mendez asks this Court to were light theory him under afford relief a false light false have been a claim would not simply prevented by because he was limita- supportable either. prevailing theo- tions a defamation In Bonding Agency National Deme- ry.8 response, adopt we should this son, (Tex.App. 648 S.W.2d 748 — Dallas reasoning Supreme of the North Carolina 1983, writ), bonding agen no the defendant Court Renwick: cy displayed poster depicting a “wanted” recognition of claims for relief for [T]he plaintiff, describing a her as “bond light false privacy invasions of would referring jumper,” and to her sexual hab by reduce judicial efficiency requiring alleged The plaintiff its. Id. at 749. dam our courts consider claims for the two ages in poster connection with the under which, identical, same relief if not would slander, libel, priva theories invasion of significantly. not differ (by intrusion, public cy pri disclosure Publishing Renwick v. & News Observer facts, light) vate and false intentional 405, 413, N.C. S.E.2d cert. infliction of jury emotional distress. denied, damages awarded actual for invasion of I see no reason to privacy exemplary damages for “inva recognize a cause of action for false privacy sion of or libel.” 750-51. Id. recovery when for that injury clearly Her by nu addressed substantially duplicated by tort is torts al merous causes action. ready established this state. Post, Both Covington v. Houston Speech Freedom of Considerations (Tex.App. S.W.2d 345 [14th — Houston above, As discussed tort 1987, writ), Clarke Denton Dist.] bears remarkable similarities defama- (Tex. S.W.2d However, tion. not wholly torts are App. denied), in writ (1) identical for two reasons: defamation newspaper incorrectly volved stories that subject proce- actions are to a number plain attributed criminal conduct to the requirements dural to which invasion of tiffs, generally conduct cognizable under not subject, actions are cer- libel. When their libel claims were barred publications tain under actionable a by limitations, plaintiffs were able to theory might defamation be actionable un- prevail on their false claims. light. persuading der false Far from me Mendez, Finally, in the in separate that these distinctions a justify case, tort, alleged placed stant I they that he was in a believe adopt- demonstrate that ing his employer spread alleg when this state would edly unacceptably derogate false information constitutional free about his termi speech rights both under the Texas and the among employees. nation its This claim States United Constitution. clearly defamation, sounds see Mara Salazar, thon Oil Co. v. 1. Procedural Differences [1st Dist.] — Houston n.r.e.),7 which, fact, 'd origi ref Mendez Actions for defamation in Texas are sub- nally pleaded. ject procedural to numerous and substan- Thus, presents appears 7. Marathon a factual remark- Id. at situation 626-27. Salazar to have case, ably yet Mendez's, similar to that the instant stated a claim similar based on premised on a defamation claim: probable nothing defamation. It lost that he Salazar, seven-year the absence of claim. employee of [Marathon] sued Marathon and ... “officers, Marathon four ... statute of limitations for defamation ac agents,” employees managing af- year. arrested, tions is with, one 16.- charged Tex.Civ.Prac. & Rem.Code ter he was and fired period 002. The limitations actions for the theft of tool ... owned a Mara- Court, expressly has not been delineated thon subcontractor and [Salazar’s] found in two-year period garage. investigation but the limitations of § 16.003 Later revealed that an See, employee probably apply. e.g., Wood of the sub-contractor had consented would v. Hus . Magazine, to loan the tool to Salazar. tler F.2d at 1088 *12 costs, each example, accounts of will not recover hurdles. For tive meetings public party taxed with the costs incurred governmental proceedings, will be (Second) purpose, any “rea- dealing public with a in the suit. also Restatement 652E, (1977) (listing comment on or criticism e sonable and fair of Torts comment § privileged under Texas an official act” are limitations on the defamation possible other Remedies Code 73.002. action, including posting require- Civil Practice & bond § in generally are not liable special damages). Broadcasters proof ments and by third made defamation for broadcasts These technical restrictions serve safe- 73.- parties. Tex.Civ.Prac. § & Rem.Code Every guard speech.9 the freedom of defa- against defama- Qualified privileges permits law neces- mation action that the a communi- at common law when tion exist As the sarily speech. free Su- inhibits author, good in faith and cation is made respect political preme with Court stated person, or one of recipient or a third Sullivan, speech in York Times v. New members, interest that family has an their 710, 721, 254, 272, 11 L.Ed.2d communica- sufficiently affected is is added to the “[w]hatever (Second) of Torts Restatement tion. from the field of free field of libel is taken (1977); Holloway also 594-97 see §§ compelling, less these While debate.” Ass’n, 810, 813 Texas Medical play also at same considerations are 1988, writ [1st Dist.] — Houston Thus, non-political expression. private, denied). may A communication also be narrowly has tai- defamation action been if it affects an im conditionally privileged possi- speech as little as to limit free lored (Sec portant public interest. Restatement ble. ond) generally of Torts see § pre- many jurisdictions have Courts (col supra, at 701-94.1 Bruce W. Sanford, by hold- speech protection served their fifty lecting privilege statutes from all libel same stric- to the ing false actions states). Damages defamatory awarded for As the Re- actions. tures as defamation may mitigated factors statements be 652E, com- (Second) of Torts statement § correction, apology, or re- public such as ment e reasons: 73.- traction. Tex.Civ.Prac. § & Rem.Code also defama- publicity is 003; Bruce W. su- Sanford, generally see [w]hen limitations of arguable that (collecting tory it is libel retraction ... pra, at 701-94.1 found de- states). long standing that have been thirty-three Consti- statutes defamation action for in Texas are without for the county courts sirable tutional by a successfully evaded cases. Tex. should not be jurisdiction to hear defamation theory of 26.043(1). Finally, proceeding upon Texas a different Gov’t Code development of which origin, in the provides Procedure 137 later Rule of Civil actions, courts has if for the the verdict attention defamation dollars, twenty directed to the limitations. plaintiff is less than notes, of centuries of in the teeth markable stamina 9. One commentator criticism, strategy may one useful reflect acid protect reputa- of words in order to control system its ultimate impact speak legal forced for a tion has an on freedom harms.”). dignitary recognition in the evolu- judgment came with [of fact] protect defamatory better to deal privileges Moreover, com- tion of munications ... Even tort that is not the defamation though reputation may protect the. freedom has been limited to seriously, by injured, very defa- sometimes Zimmerman, su- speech. Leenheer See Diane privileged, concluded mation that courts (assault pra, intentional infliction damage upon visited that on balance the limited in also been emotional distress have consequent ability speak and write and the concerns.). speech But see response to free danger society of loss to of such communica- Shiffrin, Speech Defamatory Non-Media Steven great permit person de- tion was too Methodology, UCLAL. Amendment and First famed to recover. (1978) (claiming modern Rev. Sack, supra, Harry at 1-2. See also Robert D. large part are due restrictions on defamation Kalven, Jr., Privacy Warren in Tort Law — Were judicial jurisdic- forgotten doctrines of to "now Contemp. Wrong?, & Probs. and Brandéis 326, 31 Law century necessities tion and ... seventeenth (1966) (“[t]he complexity technical administration”). judicial defamation, law of which has shown re hand, reason- other pur Several courts followed this ment.11 On the no useful ing, particularly regarding applicable pose separate served would be period. limitations v. Pulit See Sullivan if imposed. these restrictions are As the Broadcasting zer court Ob observed Renwick v. News & (Mo.1986) (limitations); Kapellas v. server 310 N.C. Kof man, Cal.Rptr. 1 Cal.3d denied, S.E.2d cert. (privilege P.2d truthful (1984): S.Ct. *13 Leibowitz, publications); Gashgai v. 703 Given First Amendment limitations 10, (1st Cir.1983)(limitations). F.2d 13 See placed upon defamation actions [New Zimmerman, supra, also Diane Leenheer upon and false York Times Sullivan v.] (1989); 21 Bachar at nn. 16 & Ann Debra light privacy actions invasion ach, Comment, The in Privacy Action Tex [Time, Hill, we think that such Inc. v.J Characterization, as: Its Determi and a re additional remedies as we might be Applicable nation Statutes Limita quired plaintiffs to make available to tions, 928, (1975); Sw.L.J. 950 Russell recognize light should we false invasion Donaldson, Annotation, Light G. In False claims are not sufficient Privcay vasion and Reme — Defenses recognition in justify jurisdiction this dies, 244, (1987). 4th 57 A.L.R. But inherently of such constitutionally sus Post, Covington v. see Houston pect for relief. claims S.W.2d 345 [14th — Houston Flynt Id. at 413. also Lerman v. See 1987, writ) (declining apply Dist.] Co., (2d 123, Distributing 745 F.2d defamation statute of limitations Cir.1984) (“regardless [plain- of whether claim); light Publishing Clarke v. Denton action is cause of cast in terms tiff's] 330 (Tex.App. — Fort light libel or false the same constitu- denied). Permitting NBC, protections apply”); tional Berry v. plaintiffs bring actions for false (8th Cir.1973)(“[t]he F.2d limits without the established defama- for problem can, whether may beyond tion actions speech inhibit free suing privacy, by-pass permissible range.10 especially This is safeguards various and in limitations which recently true Texas since this held Court grown up Garcia, have around the Davenport v. accusation Thus, (Tex.1992), I, defamation”). that article we section 8 should decline greater protec- speech any Texas Constitution affords restrict our beyond manner speech tion to free than the Amend- existing First law. tort despite Supreme seeming they consequence

10. This is they may Court’s of so little Time, approval of the false tort in Inc. v. circumvented in so casual and cavalier a fash- Hill, 87 S.Ct. 17 L.Ed.2d 456 ion?”). (1967), City Cantrell and v. Forest 419 U.S. 42 L.Ed.2d Davenport, 11. In this Court trial invalidated a Zimmerman, (1974). Diane See Leenheer su- gag by adopting stringent court’s order test for (”[t]he pra, sheer at 436 breadth of the I, scrutinizing prior restraints sec- under article exposes range a much wider of errors to tion 8 of the Texas Constitution. 834 S.W.2d liability does than defamation. The inevitable gag 10. held that a The Court order would sharp potential result is a increase in the chill- scrutiny only "withstand constitutional where ing light.”) of false I. effect also Thomas findings specific supported by there are evi- Emerson, (false supra, at 333 seri- ”raise[s] (1) irreparable dence that imminent and problems" amendment context ous first in the judicial process deprive harm to the will liti- press); Wright, Skelly of the of freedom J. Defa gants just dispute, resolution of and of a their mation, Privacy, Right the Public’s Know: (2) judicial represents action re- the least Approach, Problem A National and a New prevent strictive means to that harm.” Id. We Prosser, William L. Tex.L.Rev. although stated that we could benefit Cal.L.Rev. (if Privacy, insights developed of well-reasoned federal light ultimately up swallows defama- the law of jurisprudence, compelled we were not to reach tion, may be asked "what of it the numerous Thus, although identical Id. at 10. this results. hedged and limitations which restrictions Court, presently quite issue is before the it is many years, defamation about for in the inter- possible Davenport might press discourage- have ramifica- est of freedom and the trivial and Are tions on defamation law in this state. ment of extortionate claims? Speech expressly recognize Non-Defamatory decline to the tort light. of false theory, may pro- In action remedy non-defamatory vide a for certain CORNYN, J., joins opinion. may speech which there be no oth- remedy er Restatement tort law. See HECHT, Justice, concurring and 652E, (Second) of Torts comment b dissenting. rationale, however, is This not suf- This Court has never decided whether a persuade recognize ficient to me to tort of false or of tort. intentional infliction of emotional distress questionable remedy It is whether does or does not exist Texas. We should non-defamatory speech should exist at all.12 case, not do so in this record Hill, Time, Inc. v. argument inadequately address the issues. Supreme 17 L.Ed.2d 456 *14 The simply existence of both torts was plurality Court viewed with disfavor the assumed in the lower courts and was nei- nondefamatory by restriction of statements challenged par- ther defended until nor the the York statute: New A ties arrived here. new cause of action grave impair- We create a risk of serious simple should neither be bom of such ac- indispensable ment of service of a the quiescence by nor disowned such belated press society in if free a free we saddle protest. strong arguments The for and press impossible the with the burden of torts, against produced by the both several verifying certainty to a the facts associ- legal and authorities in commentators oth- person’s in ated news articles with a jurisdictions opinions er cited in the Jus- name, picture portrait, particularly or as and Justice are Doggett, tice Gonzalez nondefamatory related to matter. when, until, they best resolved but not are 542-43, at at fully fairly presented in a case before added).13 (emphasis L.Ed.2d at 467 us. balance, marginal On the benefit to be important A decide sensible reluctance to by permitting recovery against achieved presented in properly issues not this case by non-defamatory speech not addressed rights adjudication an of the of the makes any existing outweighed by tort would be parties difficult. believe Chief I Justice and, probable chilling speech effect on Phillips’ opinion approach takes best cases, press, in some on freedom of the assuming that if the torts recognition that would result from and intentional inflic- tort. tion of emotional distress were Texas, opinion, in in expressed For the reasons this the elements of each would be weight render this cause those of authori- we should reverse and established Zimmerman, 430-34; explains why supra, Diane Leenheer at 12. Robert Sack communications Kofman, Cal.Rptr. Kapellas rising Cal.3d not to the level of defamation should not 360, 370, (1969) (declining 459 P.2d be tortious: truthful, extend the invasion of agreement There is common that a communi- newsworthy publications). merely unflattering, annoying, cation that is embarrassing, irking, or or that hurts Supreme again Court cast doubt on re more, plaintiffs feelings, is not ac- without covery non-defamatory speech in Hus People expected Falwell, tionable ... are to be suffi- Magazine tler jibe ciently hardy the occasional to withstand The case centered on 99 L.Ed.2d 41 remark; gave disparaging if each statement parodie depiction offensive of Rev. Fal a action, Magazine. jury rise to a cause of courts would have appeared A that in Hustler well nothing $100,000 damages suits. time for but defamation in actual awarded Falwell Sack, distress, supra, D. See also Kal Robert ven, 45-46. emotional the intentional infliction of (‘If $100,000 supra, plus punitive at 340 the statement is not offen dam additional in an reversed, enough holding ages. Supreme the reasonable man to be defam sive Court enough illegiti atory, application how does it become offensive of the tort constituted an priva magazine’s free the reasonable man to be an invasion of mate effort to restrict 50-51, speech rights. cy?"); Id. at 108 S.Ct. at 879-80. stated, ty jurisdictions already recognize in in opinion Court an also Thus, Phillips: recovery torts. for false Chief Justice of privacy require would a show- no other where this We located case ing that defendant acted with actual malice Court ordered remand to allow (i.e., in these circumstances when there is losing legal party pursue theory not qualified privilege), recovery for inten- Indeed, recognized under Texas law. tional infliction of emotional distress would such a would in the inter- remand not be require showing that defendant’s conduct justice, subject est of as it would outrageous. pro- was Because Mendez prevailing party to a trial second conduct, of outrageous duced no evidence legal theory. uncertain finding malice, I requested no of actual State, Westgate, Ltd. v. agree judgment that the trial court’s his (Tex.1992). standard, By this the remand agree I favor cannot stand. with Chief this case is of justice. not interest Phillips’ opinion judgment Justice Although the circumstances Westgate must be rendered Mendez on his different, were it standard enunciated distress emotional claim. govern cases, intended other like however, I disagree, that Mendez’ false unwillingness this one. The Court’s to ad- claim should remanded for new writing long here to its own as a few thing trial. It is one to decide what the is also justice. months interest of elements of a cause action should be if it judgment I would render for Diamond allowed; quite *15 is to it be is another to Shamrock. I therefore dissent. parties remand the on a trial such a DOGGET, Justice, dissenting. hypothetical of cause action. The Court right privacy of implicit individual is “[A] parties try leaves the to their case over among ‘general, great, those and essen- again any without assurance that the tort principles liberty govern- tial of and free even asserted exists. While Mendez was by ment’ established the Texas Bill of free to assert a cause of this action Court Rights.” suit, had not when he filed he Employee’s Texas State Union v. Texas obliged prove required to the elements Dep’t Health Mental and Mental Re of weight authority recog- the of which did tardation, (Tex. 205 Granted, nize every the action. not author- 1987). ity requires showing a of malice for actual right in privacy The assault on to light tort, recovery every a false but begun. longer Texas has No will this appellate Texas court which has considered court, guardian a recently so of that liber- does. Covington issue v. Houston ty, protect personal autonomy of Tex- Post, (Tex.App. 743 S.W.2d 345 — Houston today’s opinions deny right ans. While 1987, writ); Snow, no v. Gill [14th Dist.] one employee to seek redress when 644 224 S.W.2d employer circulates incorrect and dam- 1982, writ); see no but v. Hustler Wood information, aging other, tomorrow more (5th F.2d Magazine, universal, personal rights are threatened. Cir.1984). Mendez could asked the right privacy, previously The to defined question to a trial court submit on actual right this “as court of an individual to jury separately, malice as to so not to alone, seclusion, be left to live a life of preclude judgment in his if the favor ele- publicity,”1 free unwanted encom- required. ment not were found also not passes range personal rights, a broad He not to do so. I not chose would remand couple’s from a married determination for a trial under these circumstances. new contraceptives to use a woman’s decision necessary, It is not and it is not pregnancy. a justice. whether not to terminate interest of right privacy is Only year, intricately this in an to set stan- This woven effort our justice, dards remands in the interest of into the fabric of constitutional and Atkinson, (Tex. 1973). Billings law; country removal of even a few are common found the Constitution and danger that the will common as well in early threads creates rest law as stat hanging utes.”); today Prosser, The unravel. threads left see also William L. Priva ones, disparaged merely cy, as loose not 48 Cal.L.Rev. 383 The funda are yet snipped, unimportant reinforcing this right mental nature of has been re Wade, large privacy peatedly recognized. stitches cloth. But is See Roe v. 113, 153, fragile right 726-27, it gunnysack; is too to with- U.S. (1973)(right rough such treatment. L.Ed.2d 147 stand encom passes woman’s decision whether or not to Reaching prop- out to address issues pregnancy); terminate Griswold v. Con raised, go great erly today’s writings necticut, question continuing validity lengths to (1965)(use contraception priva- of the false tort for invasion of persons protected); the home married is cy, previously which was well established Employee’s Texas State Union v. Texas I this Texas. Because believe court Dep’t Health Retar Mental and Mental right preserve erode the should rather than dation, (Tex.1987) (privacy S.W.2d I privacy, dissent. right mandatory testing). polygraph bars I. Dual The Foundations evolving concept right priva of a Privacy Right to, cy prior indepen in Texas “exists of, Constitution; dent the Texas it a core court With declaration that “[t]his expressed protected democratic value expressly has never held that tort for in the constitution.” James Har C. [state] exists,” rington, Rights (Supp. Bill Texas Cook, Phillips, S.W.2d at Justices 1992). Atkinson, Billings major into Hecht2 carve a inroad (Tex.1973), explicitly de court today has until en- privacy that clared that “an unwarranted invasion they only to all sured Texans. Yet accom- legal *16 the constitutes a plish subtlety concurring of with what Jus- injury remedy grant a will be which Cornyn and would more for tices Gonzalez do added). (emphasis at ed.’’ Id. 860 Allow now, has directly. Until this court served ing recovery damages resulting guardian right privacy, to a of a broad phone wiretapping, privacy we defined common law and under assured both the Constitution, including protection the Texas right an to left as the of individual be light. in a portrayal alone, right free from the to be appropriation exploita- or

unwarranted publicizing personality, tion of one’s A. private of one’s affairs with which the right privacy is often traced While concern, legitimate has public no or article co-authored Louis D. Bran- private wrongful one’s ac- intrusion into déis,3 legal concepts and ethical of a outrage as to or tivities such a manner right explication predate let his be alone or humili- suffering, cause shame mental per- “privacy.” concept of the term The ordinary of person ation to sensibilities. jurisprudence; vades our both federal protection of on this same “state privacy and state Id. We later relied revealpng] that the tort arises from a combination of constitutional ment of the Court law, law, regulation. actually recogni is statutory privacy’ and of common ‘invasion Aldrich, ‘privacy of interests’ consid Privacy Protection Law in tion several Robert Comm.1982) deserving protection." Industrial (Dep’t of States 3-9 ered be the United (The Texas protection law in this v. privacy “roots of Fou nd. South of (Hecht, "Concurring Dissenting at instead 213 2. Justice Hecht’s and now of later. J., dissenting). fully concurring Opinion” views of Justices and embraces the Phillips concerning privacy and Cook and dif- Brandéis, only D. & D. as to is termed Mendez's 3. Samuel Warren Louis fers whether what (1890). Right "hypothetical stopped Privacy, be 193 cause of action” should 4 Harv.L.Rev. 215 Bd., Indus. Texas Torts and Rem 668, (Tex.1976), Sales, 540 682 & B. 3 S.W.2d James denied, cert. edies 931, 1550, (1990) (here 53.01[3], 51 11 430 at 53-7 n. U.S. § Edgar Sales) (the (1977) (citing parts inafter & four William L. Pros Privacy, 48 Gal.L.Rev. most, ser, 383, “accepted by are (1960)). invasion of 389 jurists today”); if parts not all and writers We described four of the tort Denton the Clarke v. (1) 793 privacy: upon invasion “Intrusion 329, 331 solitude, S.W.2d plaintiff’s his seclusion or or into writ) (Industrial Foundation rec 1990, affairs;” private (2) “Public disclosure of ognized parts four tort of of a invasion embarrassing private plain facts about Bill acknowledged (3) privacy previously tiff;” places “Publicity plain ings); Broadcasting Corp., v. Justice Belo public eye;” tiff a false in the Bill (N.D.Tex.1979) (in F.Supp. 472 145 ad “Appropriation, for the defendant’s ings, recognized four categories Texas all vantage, like plaintiff’s name or including privacy, light, of invasion of ness.” 540 at 682. logically precedent). would under four-part This same tort4 has been (Second) adopted by the Restatement An action invasion of inclu- Torts 652A in oth- accepted by sive of false has been Hadley Edgar, states,5 er Texas courts. J. Jr. substantial number of other that, complaint (Me.1976); Dempsey v. National En 4. The essence of the Mendez A.2d 792 publicizing quirer, (D.Me.1988); F.Supp. a statement about Lawrence him that 687 692 untrue, v. A.S. Abell inaccurate or is re Diamond Shamrock 299 Md. 475 A.2d 448 Publications, sponsible (1984); Spin v. for "an Kelson unwarranted invasion of [his] 16 Med. Billings, privacy." (D.Md.1989); L.Rptr. Rob 489 S.W.2d at 1988 WL 52192 Corp., (D.Md. inson v. Vitro F.Supp. Some commentators contend that there should 620 1066 Brown, category, 1985); Beaumont v. specifi be one broad tort with no 401 Mich. 257 cally (1977); Vegas See Russell v. Las subparts. Montesano identified Don N.W.2d G. 522 Journal, aldson, Annotation, Light Pri Review False Invasion 99 Nev. 668 P.2d vacy Cognizahility Hamberger 2[a], (1983); Med.L.Rptr. and Elements v. East — man, (1964); Ma parts N.H. 206 A.2d 239 whole cannot Diaz, (2nd Cir.), chleder denied, cert. easily separated, 801 F.2d 46 and the subsets sometimes overlap, precluding categorization 94 L.Ed.2d neat other law); (1986) (applying Jersey Devlin v. general New heading under than Greiner, See, N.J.Super. e.g., Daily 371 A.2d Times Gra privacy. Democrat v. ham, (1977); Enterprises, Palmer Schonhorn (1964); Recent 276 Ala. So.2d (1967); N.J.Super. Mont Developments- 232 A.2d 458 (same at 197 facts characterized Larragoite, gomery v.Ward 81 N.M. as both one of false Curtis, Gruschus v. P.2d F.2d facts). private and of disclosure of *17 (10th Cir.1965) (discussing 775 New Mexico See, Serv., e.g., Phillips Smalley v. Maintenance 5. Hustler, law); 1657, v. Med.L.Rptr. Ault 13 1986 (Ala.1983); Daily So.2d Times Democrat 435 705 Price, (D.Or.1986); v. WL 20896 247 Tollefson Graham, 380, (1964); v. 276 Ala. 162 So.2d 474 Norban, 398, (1967); v. Bennett Or. P.2d 430 990 Inc., Newspapers, v. Godbehere Phoenix 162 Ariz. 94, (1959); Todd v. South A.2d 396 Pa. 151 476 335, (1989); McCammon & Assocs. 783 P.2d 781 Co., Carolina Farm Bureau Mut. Ins. 276 S.C. Co., Broadcasting McGraw Hill v. 716 P.2d 490 284, (1981); Holmes v. Curtis S.E.2d 278 607 Fletcher, (Colo.App.1986); Florida Pub. Co. v. Co., (D.S.C.1969); Publishing F.Supp. 522 303 denied, (Fla.1976), cert. So.2d 914 U.S. 340 431 Montgomery Shope, Ward v. 286 N.W.2d 806 930, 2634, (1977); Byrd 97 S.Ct. 53 L.Ed.2d 245 Garner, (S.D.1979); v. International Union 601 Magazine, (1983), Hustler re v. So.2d 433 593 (M.D.Tenn.1985); Cordell v. Detec F.Supp. 187 denied, (Fla.1984); view Pierson Inc., 443 So.2d 979 Pubs., (6th Cir.1969) (dis tive F.2d 419 989 Publications, Inc., Group v. News F.Supp. 549 Crump law); Beckley cussing v. Tennessee (S.D.Ga.1982); England Inc., Pavesich v. New 699, 635 Newspapers, 173 320 W.Va. S.E.2d 70 Co., 190, (1905); Gazette, Ins. 122 Ga. 50 S.E. (1983); 68 v. Miller Charleston 9 Med. Life Peterson Bank, 578, v. Idaho Nat'l First (W.Va.Cir.Ct.1983); 83 Idaho Harrison L.Rptr. v. 2540 Chase, Co., (1961); Holbrook v. (D.C.Cir. P.2d 284 12 Washington Post 367 391 A.2d 781 1732, (Idaho Ct.1985); 58-77; L.Rptr. 1978). 3[a], 57 A.L.R. Media 1736 Dist. See Re- at 4th § Levin, 434, Lepold Developments v. 259 250 cent 45 Ill.2d N.E.2d at All 196-242. of these 297, (1970); Rinsley Frydman, v. specifically 221 559 Kan. as a courts or matter of "[e]ither Adair, 357, (1977); v. implication recognized Froelich necessary upheld 334 P.2d 213 Kan. or Motors, (1973); Tooley v. cognizable principle” Canal P.2d as cause of 516 993 action Inc., v. (La.App.1974); expressly designated inherently Hamilton or 296 So.2d 453 "either Co., 3[a], Casualty (La.Ct. light.” sounding Lumbermen’s 82 So.2d 61 in false 57 A.L.R. 4th at § Pratt, Estate Berthiaume v. App.1955); 365 58-59. 216 B. by only one.6 Texas is

squarely rejected by commentators universally firmly otherwise en- only Not is this the federal compendia7 as well eroded, trenched common law majority rule accepted the courts8 to have parame- constitutional the interrelated light cause of action. recognizing a false This ters of that are threatened. was, liberty fol- court’s commitment to that appeals, courts of Numerous Texas In Texas and Indus- State Billings unquestioned. today, until lowing our decisions Union, Foundation, Employee’s employees recog- trial when state applied poly- challenged mandatory state use of action.9 How nized the false cause “right graph testing, this court found of new-found source odd implicit among those validity of the false individual as to the doubt principles writings, ‘general, great, and essential today’s is found liberty government’ established and def- and free federal retrenchment coincide with Rights.” Bill 746 S.W.2d at protection of the Texas the states for the erence to found Department’s policy was 205. The privacy rights.10 Donaldson, Annotation, See, e.g., 7. G. 6.Only sharply Carolina court Russell divided North tort, Privacy Cognizability Light adopt Invasion squarely in Ren False declined to has — 22, Elements, 3[a], Co., at Publishing A.L.R. 4th 68 310 and (1987); 57 and Observer wick v. News Kovner, al., denied, 312, 405, Develop et Recent U.S. Victor A. cert. 469 N.C. 312 S.E.2d Facts, Intrusion, Light 187, 858, False ments in Private 121 and its S.Ct. 83 L.Ed.2d 105 Claims, in 2 Communica accepted previously never Commercialization conclusion has Patents, 1991, (PLI Copyrights, at 238 tions Law any state. other Literary Property Course Trademarks recognizing existing Explicitly tort for in 324, 1991) (hereinafter Handbook Series No. simply privacy, declined to Missouri vasion of Edgar Developments); see also & Sales Recent encompassed or existed this tort decide whether 53.05[1]-0.5[4], at 53-30 53-38. §§ way, light; a false separately either from precluded. v. Pu not Sullivan action was Co., See, Big e.g., 828 F.2d Moore v. Picture 8. Co., (Mo. Broadcasting S.W.2d 475 709 litzer 270, (5th Cir.1987); Mag Faloona v. Hustler 273 1986). Gonzalez’s own sources One of Justice denied, Cir.), azine, Inc., (5th 1000 cert. 799 F.2d question in Mis is unresolved concedes souri, 1295, 94 L.Ed.2d 151 U.S. 479 (1986); Zimmerman, False see Dianne Leenheer Magazine, 736 F.2d Woodv. Hustler Failed, Privacy: Light Light Invasion denied, (5th 1984), U.S. cert. 469 Cir. (1989), while an N.Y.U.L.Rev. 368-69 (1985); Braun v. S.Ct. 83 L.Ed.2d recognize Missouri does other maintains that denied, (5th Cir.), cert. Flynt, 726 F.2d 245 3[a], A.L.R.4th § action. See 57 (1984); 65, and cases cited therein. Press, Brueggemeyer F.2d 825 Associated v. deciding Similarly, Ohio has refrained Cir.1980); Broadcasting (5th v. Belo Justice of invasion of or not the tort whether (N.D.Tex.1979). F.Supp. Corp., Yeager Local actions. to false extends Teamsters, 6 Ohio Int'l Brotherhood Union Kerr, Boyles S.W.2d Ange but see 453 N.E.2d St.3d granted); Wil writ — Texarkana Cir.1987) (Ohio ABC, (6th 820 F.2d 806 lotta v. (Tex.App.— hite v. H.E. Butt claim). recognize does 1991, writ); Clarke v. Denton Corpus Christi Virginia declined to New York nor Neither (Tex.App.— action; rather, both noted the recognize the denied); Covington v. Fort *18 statutory the claim. basis for existence of a Post, (Tex.App 345 Houston 743 S.W.2d . —Hous 433, Arrington N.Y.2d v. New York Times 55 1987, writ); Floyd Park no Dist.] ton [14th 941, (1982), cert. N.E.2d 1319 N.Y.S.2d 434 Inc., 449 denied, (Tex.App.— S.W.2d 96 People 685 Cities 1146, 787, 74 L.Ed.2d U.S. 1985, writ); 459 Bonding Agency v. no Nat'l Dallas Ltd., 521 748, v. Penthouse Int'l Demeson, (Tex.App.— Falwell 994 648 S.W.2d (W.D.Va.1981) (noting Snow, the similar F.Supp. 1983, writ); 1204 no Gill v. Dallas statute). 1982, writ); ity 222, New York (Tex.App. to the no 224 Inc., Mut. Enterprises, Farm Bureau In Todd v. South Carolina B. Pierce Film Moore v. Charles 284, 607, 1979, Ins., (Tex.Civ.App. 610 278 S.E.2d 216 S.C. S.W.2d 489 589 — Texarkana n.r.e.); "a cause of action Bell concluded that v. Southwestern court ref 'd Gonzales pleadings complaining (Tex.Civ.App. Corpus of both based on 219 stated" Tel — 1977, placing writ). private and publicizing information no Christi light. Carolina false Other South in a See, Reproductive Health e.g., 10. validity Webster v. recognize of a appear to cases also 3040, Servs., L.Ed.2d 3[a], S.Ct. 106 109 at 67- 492 A.L.R. 4th § tort. See 57 (1989). 410 “pro- nothing to privacy to violate the state constitutional do with constitutional tectpon personal privacy (Gonzalez, from unrea- rights.” n. 1 844 S.W.2d at of] sonable intrusion.” Id. J., concurring dissenting). Today’s writings provide a clear indication of the rights Constitutional and law of common newly privacy rights all weakened status of privacy together have evolved such that in Texas at the hands of five members of implications frequently constitutional are analyzing Today, discussed court. of commentators this the threads the inter- Page the false W. tort. Keeton et woven fabric of the common and constitu- al., Prosser on The Law and Keeton leaving peepholes are tional law unraveled of (5th 1984) (hereinafter Torts 866-68 ed. intruding rights of privacy into the Texans. Keeton) (constitutional protec Prosser & Each upon by of the commentaries relied protected by tion “embraces ... interests Comyn question- Gonzalez Justices action”); generally common law see ing actions also includes a direct Hill, Privacy Alfred un Defamation very concept right on the of a attack to Amendment, der The 76 Co First join privacy. justices These those who (1976). State lum.L.Rev. 1205 constitution just not view entire privacy guarantees al accordingly pro concept privacy law as infused vided a recognizing basis for See, “pettiness,” cause of to e.g., action. Godbehere v. with unable “function as a Inc., Newspapers, Phoenix 162 Ariz. concept” constitutional who conclude (1989). 783 P.2d right “the failed in three-quarters century of a to amount Disregarding the constitutional dimen- Kalven, Jr., anything.” Harry Privacy in sions of objective facilitates the Tort and Brandeis Law — Were Warren five court members this who would substantially Wrong?, Contemp.Probs. 326, prior revise caselaw based on Law & arguably less added). fundamental common law (1966) (emphasis narrowly limiting any foundation while con- Surely holding in the landmark Roe v. protection stitutional privacy right to from Wade, governmental agency polygraph tests.11 (1973), grounding very L.Ed.2d this Today’s attempt pigeonhole privacy jeop- right to privacy a woman’s vital important ardizes interests —the choose whether or to terminate her term, choose carry whether to a child to subsequent ruling pregnancy, and our avoid governmental unwarranted invasions Union make Employee’s Texas State privacy, to maintain some semblance writings Today’s view untenable. would personal technology age— freedom in a time apparently return us to when en- by a mere that at most declaration these rights forcement of was un- possess arise from “common law” and known.12 no “constitutional” dimension. Justices While false shares similarities with Comyn Gonzalez and seek distract atten- tort, defamation are reality unsupported tion from this in their the two demarcat- absolutely by significant declaration that has “this case ed differences: rights grant Sys., 11. The affirmative in state consti- S.W.2d 891 [1st — Houston protections 1988, writ); tutions often to individuals extends Christine Dist.] see also M. Dur See, e.g., ham, even absent state Porten v. action. Obligation The New or Power? Judicial Francisco, University Cal.App.3d San Policy-Making and the Roles Federalism State Cal.Rptr. (applying privacy Courts, Supreme Emerging Issues in State Const, I, guarantee private in Cal. art. 1 to Const. L. university); Leach v. Drummond Medical Group, Cal.Rptr. Cal.App.3d *19 Frequent reference is also made to the writ- 12. (1983) (applying petition California Zimmerman, ing of who has an Professor Const, clause, I, dispute against Cal. art. § outspoken protection of critic of tort private Morrison, group); v. Morrison & medical Walinski Zimmerman, rights. Requiem See Diane L. for Ill.App.3d 18 Ill.Dec. 91- Heavyweight: A to Warren and Bran- Farewell (1978) (allowing sex 377 N.E.2d 244-45 Tort, (1983). Privacy L.Rev. 291 deis’s 68 Cornell against private claim firm under discrimination I, 17); Hosp. v. Ill-Const. art. Jones Memorial § showing special damages quired a of aris- necessary not ... to the action It is reputation.” plaintiff ing that the be from “harm to Prosser & given weigh he is enough It is that at These differences Keeton 866. defamed. highly objectionable against of false tort unreasonable elimination to him character- publicity grounds overlap. that attributes of false, istics, are conduct or beliefs that public in placed is and so before C. the case and position. false When this is parties, A cause of action that denies to the is the matter attributed defendants, particularly media a truth de- defamatory, the rule here stated not af- chilling speech. potential fense has the available remedy, different fords precisely why past is in the That we an action for defamation. applied speech free special substantive 652E, (Second) Torts Restatement § procedural require- rules in addition to added). remedy The (emphasis comment b Walker, 834 Telegram ments. v. See Star “the two torts exist to is different because (freedom (Tex.1992) print al- wrongful con- types

redress different information). There is no rea- ready public 787; Godbehere, 783 P.2d at see duct.” ap- cannot why special son such rules be Hemmer, Jr., Supreme Joseph J. The also context,14particular- plied in the false and the First Amendment Court ly are involved.15 when media defendants (“False publication involves individual, appropriate liability of false information about An standard not.”); Edgar defamatory or knowledge whether it is such as that “the actor had 53.05940, (discussing at 53-57 disregard,” & Sales Restate- or acted reckless § differences “some fundamental between (Second) 652E(b), ment of Torts has been § torts”).13 the two ample protection offer for free found to discourage any false expression and to conceptual The critical distinction now light litigation explosion. See Godbehere protects disregarded is that defamation law Inc., 783 P.2d at Newspapers, v. Phoenix light, injury reputation; false (finding the Restatement’s stan- 788-89 law, pre- privacy protection any like other preserve, speech). free adequate dards right to let alone. See God serves the be way false action “re- does the 787; Renwick, behere, 783 P.2d at beyond our speech any strict manner J., (Meyer, concurring and at 415 S.E.2d law;” indeed, existing Justices Gonza- 864; dissenting); Prosser Keeton at Re & 1094; Cornyn amply demonstrate that 110; lez and at Developments at Wade cent preserved their Emerson, “many jurisdictions have Right Privacy Thomas I. by [adopting reason- Press, protection speech Harv.C.R.- and Freedom the light actions.” limitations L.Rev. see also 57 able C.L. on] (Gonzalez, J., concurring 88-90, and cases cited 844 S.W.2d at 210 A.L.R. 4th dissenting). leading commentator separate interests. One These are two therein. expression has for freedom of suffered —with and advocate injuries different are Two pri- “false-light invasion of enough concluded that “[i]t interests vacy actions ... serve the state severe emotional dis- publicity [causes] damaging false deterring publication tress,” there is re- while with defamation (2d Indeed, Flynt Cir. suggest Distrib. 745 F.2d on to an article relied (8th NBC,Inc., clearly praises any 1984); Berry are identical 480 F.2d the two torts noting overlap difference 1973). while that "[t]he such cir. is now well known.” the two torts between Wade, Right John W. not, however, Defamation overly 15.These rules should 1093, 1094, Privacy, 15 Vand.L.Rev. has re- As at least one observer restrictive. marked, (1962). between the "the areas of conflict quite press are freedom of the support proposition of this 14. The cases cited in Emerson, Right to Pri- Thomas I. tort, limited.” but rather do not criticize the Press, Harv.C.R.- vacy and Freedom the exactly type apply of restrictions that implies lacking. C.L.L.Rev. to be See Lerman concurrence *20 reputation.” protecting strangle potential information and that serve to all future Rodney Smolla, litigation A. Distress type. today’s Emotional of this Under re- Analysis and the First An interpretation “outrageous,” Amendment: strictive Falwell, Hustler v. 20 Ariz.St.L.J. employer’s having an to even admission (1988).16 falsely employee an advertised that was a sufficiently thief would not as be viewed liability comports This standard with also legal justify “intolerable” to recourse. Id. one, guarantees the broad of article section short, opinions, today’s under worker’s Constitution, eight per- of the Texas that good legally nothing.19 name counts for speak freely, by sons interfer- unhindered government private persons, ence post-speech for

but with remedies abuse of Disposition III. Garcia, privilege. Davenport that Today’s misguided writings lead to an (Tex.1992, orig. proceed- misguided equally result. Mendez is sent ing).17 striking Rather than a balance that to the trial submit to jury back court to expression, today’s bolsters freedom of ac- question tort, the about a existence of simply denigrates privacy. tion

which two of this court members refuse to recognize, discuss, four refuse and the II. Intentional Infliction of remaining say already three has been rec- Emotional Distress by ognized this court. This case is based Conceding recovery that intentional upon years ago; events that occurred seven widely infliction emotional distress is perhaps years, pur- in another seven after 3,18 permitted, see 844 at 202 S.W.2d & n. suing appeal, par- another trial and these parties and aware that neither the nor ami- finally ties will be accorded a real answer. argue plead cus that Mendez failed has action, Phillips cause Justice neverthe- multiple waivers error Dia- less declares Mendez has no claim as “a mond Shamrock should dictate that matter of law.” if Id. at 202. “Even ... judgment for Mendez be affirmed. Not employer falsely true Mendez’s de- [that coming this court did until Diamond him picted as a thief to coworkers and his that a suggest Shamrock ever community] this not sufficiently conduct is was under action unavailable Texas law. outrageous to jury raise a fact issue” for lodged such objection any No at time sufficiently consideration. Id. “Not outra- in either the trial or the court court of geous”? outrageous What could more appeals. Nor did Diamond Shamrock in employer falsely deliberately than an objecting light jury to the false instruction blackening the name of a worker to co- any proper tender alternative instruction as potential employers? workers other required by these Tex.R.Civ.P. While remand, against a appeals certainly court of failures dictate properly reviewed urged presented rendition Mendez as both evidence this case to deter- Hecht, (Hecht, J., liability mine whether But in- at 213 attached. Justice S.W.2d evidence, concurring dissenting) of an analysis specific (referring stead to the we today pronouncements merely “hypo- receive broad cause of Mendez action necessary 16. Professor Smolla concludes claim that this result is further 19.The figure doctrine, private safeguard is a and the employment-at-will "[w]hen speech concern, any public does not involve issue of misplaced. Under also ... no first restrictions amendment doctrine, long-established see East Line & R.R.R. apply, relegating protection solely will Scott, 10 S.W. Co. 72 Tex. applicable available under common law Mendez could be dismissed some reason or rules.” Id. at 467. question reason. here is not the What is whether, properly power to terminate but once supportive additional 17. For reasons such a terminated, employee can thereafter be standard, Smolla, Rodney see A. Law of Defa- falsehoods. blacklisted deliberate 10.02[3][b], (1992). § mation at 10-11 (Second) also 18. See Restatement Torts

thetical”), rehearing tion for court has “once and Justices Gonzalez and Cor- that the J., (Gonzalez, dissenting), again is its lack concern nyn, id. at 203 demonstrate^] supra inappropriate. suggested important rights,” for human at more This even propelled by reaching out to that the has a double stan- disposition is court “erect[ed] Texas,” supra, on a decry justice in reliance dard for in unfairly refusing “seeking remand ways recent decision to and that court is to jury].” Ltd. v. Westgate supra for a new trial. See to trial subvert [the J., State, (Doggett, 843 S.W.2d at 223. dissenting). judges disagree It is not unusual for to suggestion The that could have Mendez issue; legal about the merits of a contested here, 844 anticipated adopted the standard in court in happens everyday it this J., (Hecht, concurring S.W.2d at It throughout courts the nation. has obvi- dissenting), ignores the state of the law at ously in this case. It is another occurred

the time this case was tried.20 When thing altogether judge for a to declare him- of the cause of are unset elements action champion self to of one side of a be the preserved, remand tled and error has been case, summarily ignoring while dismiss- appropriate. Publish See Caller-Times ing opposing legal rights party. of an Inc., Communications, ing v. Triad Co. expect Texans and are entitled better (on (Tex.1992) motion they from the individuals whom rehearing). for duty administering entrusted the solemn equal justice than to under law resort

IV. Conclusion personal on those with different attacks Roque did Mendez know that the views the law. Little he threw lunch discarded nails into his few job carefully weigh It is a judge’s the trash be bag rather than bin would delicate, competing interests and strike nailing begin shut the coffin lid on used to perhaps imperfect, balance between those certainly today’s I reject actions. competing interests. That is what writings, signal the commencement Obviously, court has done this case. right. death of not so slow this vital disagrees. But dissenting justice as Ros- judgment af- The court’s should be trial Pound, Emeritus of the coe Dean Harvard full; right of privacy should firmed School, Law has written: guaranteed. fully opinions judge highest place no court of a state are intem- GAMMAGE,JJ., join this MAUZYand judge’s perate denunciation of col- dissenting opinion. invective, leagues, attributing of violent court, majority of the bad motives to the MOTION FOR REHEARING ON incompetence, negli- insinuations rehearing Motion for overruled. gence, prejudice, or obtuseness fellow members of the court. OPINION ON MOTION CONCURRING Pound, Roscoe Dissentiendi: Cacoethes FOR REHEARING Dissent, 39 A.B.A.J. The Heated Judicial Justice, CORNYN, concurring. 1953). dissenting jus- (Sept. represent example another respond dissenting tice’s remarks only I write tendency toward intoler- in his on mo- of an unfortunate justice’s opinion accusations (Tex.App. appellate opinions Worth three Texas 20. Of the - Fort standard, denied). only followed Mendez the Fifth applied this two were not have before Texas, court, assuming based Covington Circuit on exist v. Houston in this reviewed law, negligence Post, ing apply (Tex.App. standard in would [14th S.W.2d 345 — Houston 1987, writ); Snow, brought by private individu actions no Gill v. Dist.] writ), Magazine, F.2d al. v. Hustler Wood Cir.1984). (5th Edgar See also & announced trial third was and the after 53.05[3], Sales at at 53-36. v. Denton case. Clarke opinion legal recovery anee honest differences of had also theory discussed *22 this on court.1 in various contexts.” See Clarke v. Den 329, 331 ton 793 S.W.2d HECHT, J., joins concurring opinion this denied); (Tex.App. Worth rehearing. on motion for — Fort Post, Covington Houston 743 S.W.2d v. DISSENTING MOTION OPINION ON (Tex.App. [14th Dist.] — Houston FOR REHEARING writ); Snow, 222, 224 no Gill v. 644 S.W.2d writ).1 Di- DOGGETT, Justice, dissenting. Shamrock, moreover, amond located an ad- today, its majority decision the once commentator, leading ditional a in- Texas again its demonstrates lack of concern for attorney, surance defense reached the who rights, important recently human so exhib- regarding validity same conclusion of a the Kerr, in Boyles ited v. 1992 WL 353277 false of Texas. cause action in (Tex.1992) (refusal permit sur- woman Jerry Gibson, A. Developing Law of videotaped reptitiously during inter- sexual Liability Non-Physical Tort Harm: A for negligent course to recover for infliction of Practitioner, Guide the Texas 18 St. for distress). emotional Mary’s L.J. Diamond cause, The declared victor this Dia- argument Shamrock’s conflicts with the Shamrock, mond has filed motion for a reasoning underlying opin- majority’s the rehearing that admits the weakness of the ion. legal limited analysis employed by the ma- Indeed, protection through of privacy the jority significant to justify weakening of false so tort was well-established in the all Texans. While Texas the time the this trial of case contending “judicial that the interests of explains that Diamond its Shamrock failure economy be by would well-served [a object to jury the submission of a related straightforward death for sentence the charge as follows: theory privacy] since numerous cases discussed the theo- now, later,” years instead of several Dia- ry of recovery light], proba- [for highly insight- mond Shamrock’s motion is response (i.e., ble objection to an that Citing ful. Industrial Foundation this recognized Court had not expressly South v. Texas Industrial Accident recovery) the theory of would have been Board, (Tex.1976), 540 S.W.2d it that objection was frivolous and concedes “that this Court had groundless. light] theory recovery as one [false categories of the four usual Although disagree of invasion of I with application privacy” research, and notes that “at time its Diamond Shamrock abso- tried, case was appellate lutely important this several courts particular— correct in one Kerr, e.g., (Tex. J., Boyles (Tex.1992) (Doggett, dissenting) 1. See v. 1992 WL 353277 1992) J., (Doggett, ("the dissenting) majority ("many judicial beyond scope re- excesses far anything respect alleged particular Texas writes law and recants the case will dignity henceforth nod human affirmed this court in St. receive official Garrard, Court"); Supreme Hospital from the wink Texas Stewart 730 S.W.2d 649 [v. Elizabeth 1987) ]”); Smith, Sterling, (Tex. Title Guar. Co. v. 822 S.W.2d Elabaor v. S.W.2d J., ("The J., (Tex.1991) (Tex.1992) (Doggett, dissenting) (Doggett, dissenting) ("plunging court’s growing injustice get territory fear that victims of will helter-skelter into uncharted to save justice too much causes it to confer a windfall jury another medical doctor that a found to wrongdoers”); Sterling Drug, Moreno v. malpractice, majority committed J., (Tex.1990) (Doggett, S.W.2d regard without to the writes chaotic effect of its ("the dissenting) opinion rightly ruling....”); court’s can be Ingersoll-Rand, Russell anti-family (Tex.1992) J., as of the most recorded one deci- (Doggett, dissenting) S.W.2d 343 memory”). sions in recent ("henceforth any of a action the death loved can be it one barred before That is accrues.... objective injustice dissent, original my of another committed As noted in 1. these authori- majority slightest among appellate opin- is not slowed in the ties were the nine Texas writing applying recognizing either a statute ... or its own recent ions Packer, contrary”); Walker v. n. cause action. at 216 any objection justice other court its would Texas. “Mandamus al- before [has disregarded ground- ready officially one-way declared a as “frivolous and been] judiciary Unfortunately yesterday’s admitted- street in the Texas courts—our less.” battering help to hide not to ly groundless claim has can become [information] Packer, majority they in the detect.” ram hands of the Walker (Tex.1992, orig. proceeding) (Dog assault so vital to. J., gett, dissenting). jury Texans. Broad-form sub- this cause are set forth in full writing his concurrence: speak for themselves. Because this terse Comyn, My ^[*] remarks has I append the ^[*] apparently on the ^[*] following merits of ^[*] unsettled Justice ^[*] above, in rehearing reply ^[*] and Compare lief will be with mission can be relied defendant to invalidate a by prevailing plaintiff S.W.2d State a (Tex.1992) Keetch v. Dept. swiftly granted (Tex.1992). Emergency (Mauzy, Highways Kroger, upon by jury J., dissenting), *23 verdict, uphold those v. Payne, losing who one. but re- incon- Completely to address this unable documents, slowly wish to hide court reasoning sistency between the of the ma- denied to those seek access to trial who opinion argument advanced jority Compare Lilly v. Mar exhibits. Eli & Co. it, very prevailed party who under shall, (Tex.1991),orig. pro 829 S.W.2d 156 Comyn any pretense of dis- Justice avoids J., dissenting ceeding) (Doggett, to order in cussing the merits of this case order granting petition leave to file for writ of proper deliver a short lecture on the role of mandamus), Morning News v. with Dallas certainly appro- judge. a While this Appeals, Court S.W.2d Fifth consider, rehearing a priate question to (Tex.1992, orig. proceeding) (Doggett, Cornyn has not cause about which Justice J., dissenting overruling to order motion hardly the most previously written seems petition for leave to file for writ of manda I appropriate context for its consideration. mus). agree completely judge’s job is a that “It balance, achieving judge In a should carefully weigh competing interests and respect precedent for maintain reasonable delicate, perhaps imperfect, strike a bal- predictability stability so as to assure competing interests.” ance between those must in the law. Judicial restraint be exer- J., (Cornyn, concurring opinion on At 220 judicial my result. Both cised rather than rehearing). motion for original opinion in cause and that is- this “balance,” id., “striking]” In I find it today Unfortu- sued reflect this concern. appropriate to seek a reasonable is often concept prior on the nately, the of reliance conflicting course of moderation between long has since decisions of Texas courts (Tex.1992) Boyles interests. v. Kerr significant restraint on pose any ceased to J., (Doggett, dissenting), instead of com- See, majority. e.g., Boyles v. Kerr barring any recovery negligence pletely J., (Tex.1992) dissenting) (object- (Doggett, distress, urged resulting in I emotional overruling of landmark ing majority’s moderate course crafted from Texas “more Supreme permitting decision Texas Court growing body of na- precedent law resulting in emo- recovery negligence liability limit for the tionally that would Packer, distress); tional v. Walker griev- recompensing truly trivial while (Tex.1992, orig. proceed- S.W.2d case, instant I coun- Similarly, ous.” J., ing) (Doggett, dissenting) (noting major- reaffirming recognition seled moderation precedent,” “mass execution of en ity’s adding appro- tort while compassing “a dozen or more Texas Su preserve speech free priate safeguards to countless decisions preme Court cases and rights. appeals”); Carrollton- of the courts Indep. Branch Sch. Dist. Unfortunately, majority has increas- Farmers Indep. Edgewood moderation and balance Sch. ingly rejected Dist. J., (Tex.1992)(Doggett, dissenting) of a standard of the erection double favor (discussing rejection by majority of its own year previous

decision issued less than one CORPORATION, GRANADA ly); Stewart Guaranty Title Co. v. Ster al., Relator, et (Tex.1991) ling, (Doggett, S.W.2d J., (court dissenting) disregards its own precedent,

recent looking instead to over The HONORABLE FIRST COURT case). ruled APPEALS, Respondent. OF Moreover, judges, perform we should timely responsible our duties in a man No. D-1764. ner. delay issuing opinions Yet the Supreme Court of Texas. uncorrected, this court continues despite my prompt effort to more achieve resolu Dec. 1992. tion of our docket. See Schick v. H.Wm. (Tex.

McGee & Rehearing Overruled Jan. 1992) J., (Doggett, concurring opinion on *24 dismiss), granting order motion to

cases cited therein. judge

A support right should our to trial

by jury seeking ways instead of to subvert right.

and limit Long ago, Texans paramount importance guarantee, stating in grievances their government the Mexican that:

It secure, has failed and refused to basis,

a firm right by jury, of trial palladium liberty, civil guarantee life,

safe for the liberty, and

property of the citizen. Independence Declaration of

Republic (1836),reprinted of Texas in Tex. app. (Vernon 1955). Here,

Const.

Roque Mendez panel convinced a of Texas

citizens that actions of Diamond Shamrock injury

had resulted in to him. The vote of

those people twelve nullity rendered a

today, increasingly as so occurs with this

majority. May v. United Services America,

Ass’n (Tex.1992) J., (Doggett, dissenting), and

cases cited therein. judge rejects path

When a of modera-

tion, ignores precedent, loses confidence by jury,

our to trial while at the same making

time a calculated assault on the privacy, he may feel a need for

some camouflage, cover. While rather thin concurring opinion represents little withstanding If

else. such criticism is the defending

cost of on this court our liber-

ties, price pay. it is a small