The Florida Star v. B.J.F./Concurrence Scalia

by Antonin Scalia

Justice SCALIA, concurring in part and concurring in the judgment.

I think it sufficient to decide this case to rely upon the third ground set forth in the Court's opinion, ante, at 540 and this page: that a law cannot be regarded as protecting an interest "of the highest order," Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 2670-71, 61 L.Ed.2d 399 (1979), and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited. In the present case, I would anticipate that the rape victim's discomfort at the dissemination of news of her misfortune among friends and acquaintances would be at least as great as her discomfort at its publication by the media to people to whom she is only a name. Yet the law in question does not prohibit the former in either oral or written form. Nor is it at all clear, as I think it must be to validate this statute, that Florida's general privacy law would prohibit such gossip. Nor, finally, is it credible that the interest meant to be served by the statute is the protection of the victim against a rapist still at large-an interest that arguably would extend only to mass publication. There would be little reason to limit a statute with that objective to rape alone; or to extend it to all rapes, whether or not the felon has been apprehended and confined. In any case, the instructions here did not require the jury to find that the rapist was at large.

This law has every appearance of a prohibition that society is prepared to impose upon the press but not upon itself. Such a prohibition does not protect an interest "of the highest order." For that reason, I agree that the judgment of the court below must be reversed.

Justice WHITE, with whom THE CHIEF JUSTICE and Justice O'CONNOR join, dissenting.

"Short of homicide, [rape] is the 'ultimate violation of self.' " Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 2869, 53 L.Ed.2d 982 (1977) (opinion of WHITE, J.). For B.J.F., however, the violation she suffered at a rapist's knifepoint marked only the beginning of her ordeal. A week later, while her assailant was still at large, an account of this assault identifying by name B.J.F. as the victim-was published by The Florida Star. As a result, B.J.F. received harassing phone calls, required mental health counseling, was forced to move from her home, and was even threatened with being raped again. Yet today, the Court holds that a jury award of $75,000 to compensate B.J.F. for the harm she suffered due to the Star's negligence is at odds with the First Amendment. I do not accept this result.

The Court reaches its conclusion based on an analysis of three of our precedents and a concern with three particular aspects of the judgment against appellant. I consider each of these points in turn, and then consider some of the larger issues implicated by today's decision.

* The Court finds its result compelled, or at least supported in varying degrees, by three of our prior cases: Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977); and Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979). I disagree. None of these cases requires the harsh outcome reached today.

Cox Broadcasting reversed a damages award entered against a television station, which had obtained a rape victim's name from public records maintained in connection with the judicial proceedings brought against her assailants. While there are similarities, critical aspects of that case make it wholly distinguishable from this one. First, in Cox Broadcasting, the victim's name had been disclosed in the hearing where her assailants pleaded guilty; and, as we recognized, judici l records have always been considered public information in this country. See Cox Broadcasting, supra, 420 U.S., at 492-493, 95 S.Ct., at 1044-1045. In fact, even the earliest notion of privacy rights exempted the information contained in judicial records from its protections. See Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 216-217 (1890). Second, unlike the incident report at issue here, which was meant by state law to be withheld from public release, the judicial proceedings at issue in Cox Broadcasting were open as a matter of state law. Thus, in Cox Broadcasting, the state-law scheme made public disclosure of the victim's name almost inevitable; here, Florida law forbids such disclosure. See Fla.Stat. § 794.03 (1987).

These facts-that the disclosure came in judicial proceedings, which were open to the public-were critical to our analysis in Cox Broadcasting. The distinction between that case and this one is made obvious by the penultimate paragraph of Cox Broadcasting:

"We are reluctant to embark on a course that would make public records generally available to the media but would forbid their publication if offensive. . . . [T]he First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. . . . Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Cox Broadcasting, supra, at 496, 95 S.Ct., at 1047 (emphasis added).

Cox Broadcasting stands for the proposition that the State cannot make the press its first line of defense in withholding private information from the public-it cannot ask the press to secrete private facts that the State makes no effort to safeguard in the first place. In this case, however, the State has undertaken "means which avoid [but obviously, not altogether prevent] public documentation or other exposure of private information." No doubt this is why the Court frankly admits that "Cox Broadcasting . . . cannot fairly be read as controlling here." Ante, at 532.

Finding Cox Broadcasting inadequate to support its result, the Court relies on Smith v. Daily Mail Publishing Co. as its principal authority. ^[1] But the flat rule from Daily Mail on which the Court places so much reliance-"[I]f a newspaper lawfully obtains truthful information . . . then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order"-was introduced in Daily Mail with the cautious qualifier that such a rule was "suggest[ed]" by our prior cases, "[n]one of [which] . . . directly control[led]" in Daily Mail. See Daily Mail, 443 U.S., at 103, 99 S.Ct., at 2671. The rule the Court takes as a given was thus offered only as a hypothesis in Daily Mail: it should not be so uncritically accepted as constitutional dogma.

More importantly, at issue in Daily Mail was the disclosure of the name of the perpetrator of an infam us murder of a 15-year-old student. Id., at 99, 99 S.Ct., at 2668-69. Surely the rights of those accused of crimes and those who are their victims must differ with respect to privacy concerns. That is, whatever rights alleged criminals have to maintain their anonymity pending an adjudication of guilt-and after Daily Mail, those rights would seem to be minimal-the rights of crime victims to stay shielded from public view must be infinitely more substantial. Daily Mail was careful to state that the "holding in this case is narrow. . . . there is no issue here of privacy." Id., at 105, 99 S.Ct., at 2672 (emphasis added). But in this case, there is an issue of privacy-indeed, that is the principal issue-and therefore, this case falls outside of Daily Mail's "rule" (which, as I suggest above, was perhaps not even meant as a rule in the first place).

Consequently, I cannot agree that Cox Broadcasting, or Oklahoma Publishing, or Daily Mail requires-or even substantially supports-the result reached by the Court today.

We are left, then, to wonder whether the three "independent reasons" the Court cites for reversing the judgment for B.J.F. support its result. See ante, at 537-541.

The first of these reasons relied on by the Court is the fact "appellant gained access to [B.J.F.'s name] through a government news release." Ante, at 538. "The government's issuance of such a release, without qualification, can only convey to recipients that the government considered dissemination lawful," the Court suggests. Ibid. So described, this case begins to look like the situation in Oklahoma Publishing, where a judge invited reporters into his courtroom, but then tried to prohibit them from reporting on the proceedings they observed. But this case is profoundly different. Here, the "release" of information provided by the government was not, as the Court says, "without qualification." As the Star's own reporter conceded at trial, the crime incident report that inadvertently included B.J.F.'s name was posted in a room that contained signs making it clear that the names of rape victims were not matters of public record, and were not to be published. See 2 Record 113, 115, 117. The Star's reporter indicated that she understood that she "[was not] allowed to take down that information" (i.e., B.J.F.'s name) and that she "[was] not supposed to take the information from the police department." Id., at 117. Thus, by her own admission the posting of the incident report did not convey to the Star's reporter the idea that "the government considered dissemination lawful"; the Court's suggestion to the contrary is inapt.

Instead, Florida has done precisely what we suggested, in Cox Broadcasting, that States wishing to protect the privacy rights of rape victims might do: "respond [to the challenge] by means which avoid public documentation or other exposure of private information." 420 U.S., at 496, 95 S.Ct., at 1047 (emphasis added). By amending its public records statute to exempt rape victims names from disclosure, Fla.Stat. § 119.07(3)(h) (1983), and forbidding its officials to release such information, Fla.Stat. § 794.03 (1983), the State has taken virtually every step imaginable to prevent what happened here. This case presents a far cry, then, from Cox Broadcasting or Oklahoma Publishing, where the State asked the news media not to publish information it had made generally available to the public: here, the State is not asking the media to do the State's job in the first instance. Unfortunately, as this case illustrates, mistakes happen: even when States take measures to "avoid" disclosure, sometimes rape victims' names are found out. As I see it, it is not too much to ask the press, in instances such as this, to respect simple standards of decency and refrain from publishing a victims' name, address, and/or phone number. ^[2]

Second, the Court complains that appellant was judged here under too strict a liability standard. The Court contends that a newspaper might be found liable under the Florida courts' negligence per se theory without regard to a newspaper's scienter or degree of fault. Ante, at 539-540. The short answer to this complaint is that whatever merit the Court's argument might have, it is wholly inapposite here, where the jury found that appellant acted with "reckless indifference towards the rights of others," 2 Record 170, a standard far higher than the Gertz standard the Court urges as a constitutional minimum today. Ante, at 539-540. B.J.F. proved the Star's negligence at trial-and, actually, far more than simple negligence; the Court's concerns about damages resting on a strict liability or mere causation basis are irrelevant to the validity of the judgment for appellee.

But even taking the Court's concerns in the abstract, they miss the mark. Permitting liability under a negligence per se theory does not mean that defendants will be held liable without a showing of negligence, but rather, that the standard of care has been set by the legislature, instead of the courts. The Court says that negligence per se permits a plaintiff to hold a defendant liable without a showing that the disclosure was "of a fact about a person's private life . . . that a reasonable person would find highly offensive." Ibid. But the point here is that the legislature-reflecting popular sentiment-has determined that disclosure of the fact that a person was raped is categorically a revelation that reasonable people find offensive. And as for the Court's suggestion that the Florida courts' theory permits liability without regard for whether the victim's identity is already known, or whether she herself has made it known-these are facts that would surely enter into the calculation of damages in such a case. In any event, none of these mitigating factors was present here; whatever the force of these arguments generally, they do not justify the Court's ruling against B.J.F. in this case.

Third, the Court faults the Florida criminal statute for being underinclusive: § 794.03 covers disclosure of rape victims' names in " 'instrument[s] of mass communication,' " but not other means of distribution, the Court observes. Ante, at 540. But our cases which have struck down laws that limit or burden the press due to their underinclusiveness have involved situations where a legislature has singled out one segment of the news media or press for adverse treatment, see, e.g., Daily Mail (re tricting newspapers and not radio or television), or singled out the press for adverse treatment when compared to other similarly situated enterprises, see, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 578, 103 S.Ct. 1365, 1368, 75 L.Ed.2d 295 (1983). Here, the Florida law evenhandedly covers all "instrument[s] of mass communication" no matter their form, media, content, nature, or purpose. It excludes neighborhood gossips, cf. ante, at 540, because presumably the Florida Legislature has determined that neighborhood gossips do not pose the danger and intrusion to rape victims that "instrument[s] of mass communication" do. Simply put: Florida wanted to prevent the widespread distribution of rape victims' names, and therefore enacted a statute tailored almost as precisely as possible to achieving that end.

Moreover, the Court's "underinclusiveness" analysis itself is "underinclusive." After all, the lawsuit against the Star which is at issue here is not an action for violating the statute which the Court deems underinclusive, but is, more accurately, for the negligent publication of appellee's name. See App. to Juris. Statement A10. The scheme which the Court should review, then, is not only § 794.03 (which, as noted above, merely provided the standard of care in this litigation), but rather, the whole of Florida privacy tort law. As to the latter, Florida does recognize a tort of publication of private facts. ^[3] Thus, it is quite possible that the neighborhood gossip whom the Court so fears being left scot free to spread news of a rape victim's identity would be subjected to the same (or similar) liability regime under which appellant was taxed. The Court's myopic focus on § 794.03 ignores the probability that Florida law is more comprehensive than the Court gives it credit for being.

Consequently, neither the State's "dissemination" of B.J.F.'s name, nor the standard of liability imposed here, nor the underinclusiveness of Florida tort law requires setting aside the verdict for B.J.F. And as noted above, such a result is not compelled by our cases. I turn, therefore, to the more general principles at issue here to see if they recommend the Court's result.

At issue in this case is whether there is any information about people, which-though true-may not be published in the press. By holding that only "a state interest of the highest order" permits the State to penalize the publication of truthful information, and by holding that protecting a rape victim's right to privacy is not among those state interests of the highest order, the Court accepts appellant's invitation, see Tr. of Oral Arg. 10-11, to obliterate one of the most noteworthy legal inventions of the 20th century: the tort of the publication of private facts. W. Prosser, J. Wade, & V. Schwartz, Torts 951-952 (8th ed. 1988). Even if the Court's opinion does not say as much today, such obliteration will follow inevitably from the Court's conclusion here. If the First Amendment prohibits wholly private persons (such as B.J.F.) from recovering for the publication of the fact that she was raped, I doubt that there remain any "private facts" which persons may assume will not be published in the newspapers or broadcast on television. ^[4]

Of course, the right to privacy is not absolute. Even the article widely relied upon in cases vindicating privacy rights, Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890), recognized that this right inevitably conflicts with the public's right to know about matters of general concern-and that sometimes, the latter must trump the former. Id., at 214-215. Resolving this conflict is a difficult matter, and I fault the Court not for attempting to strike an appropriate balance between the two, but rather, fault it for according too little weight to B.J.F.'s side of equation, and too much on the other.

I would strike the balance rather differently. Writing for the Ninth Circuit, Judge Merrill put this view eloquently:

"Does the spirit of the Bill of Rights require that individuals be free to pry into the unnewsworthy private affairs of their fellowmen? In our view it does not. In our view, fairly defined areas of privacy must have the protection of law if the quality of life is to continue to be reasonably acceptable. The public's right to know is, then, subject to reasonable limitations so far as concerns the private facts of its individual members." Virgil v. Time, Inc., 527 F.2d 1122, 1128 (1975), cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 823 (1976).

Ironically, this Court, too, had occasion to consider this same balance just a few weeks ago, in United States Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). There, we were faced with a press request, under the Freedom of Information Act, for a "rap sheet" on a person accused of bribing a Congressman-presumably, a person whose privacy rights would be far less than B.J.F.'s. Yet this Court rejected the media's request for disclosure of the "rap sheet," saying:

"The privacy interest in maintaining the practical obscurity of rap-sheet information will always be high. When the subject of such a rap sheet is a private citizen and when the information is in the Government's control as a compilation, rather than as a record of 'what the government is up to,' the privacy interest . . . is . . . at its apex while the . . . public interest in disclosure is at its nadir." Id., at 780, 109 S.Ct., at 1485.

The Court went on to conclude that disclosure of rap sheets "categorical[ly]" constitutes an "unwarranted" invasion of privacy. Ibid. The same surely must be true-indeed, much more so for the disclosure of a rape victim's name.

I do not suggest that the Court's decision today is a radical departure from a previously charted course. The Court's ruling has been foreshadowed. In Time, Inc. v. Hill, 385 U.S. 374, 383-384, n. 7, 87 S.Ct. 534, 539-540, n. 7, 17 L.Ed.2d 456 (1967), we observed that-after a brief period early in this century where Brandeis' view was ascendant-the trend in "modern" jurisprudence has been to eclipse an individual's right to maintain private any truthful information that the press wished to publish. More recently, in Cox Broadcasting, 420 U.S. at 491, 95 S.Ct., at 1044, we acknowledged the possibility that the First Amendment may prevent a State from ever subjecting the publication of truthful but private information to civil liability. Today, we hit the bottom of the slippery slope.

I would find a place to draw the line higher on the hillside: a spot high enough to protect B.J.F.'s desire for privacy and peace-of-mind in the wake of a horrible personal tragedy. There is no public interest in publishing the names, addresses, and phone numbers of persons who are the victims of crime-and no public interest in immunizing the press from liability in the rare cases where a State's efforts to protect a victim's privacy have failed. Consequently, I respectfully dissent. ^[5]

Notes

1. The second case in the "trilogy" which the Court cites is Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977). See Ante, at 530-531. But not much reliance is placed on that case, and I do not discuss it with the degree of attention devoted to Cox Broadcasting or Daily Mail.
2. The Court's conce n for a free press is appropriate, but such concerns should be balanced against rival interests in a civilized and humane society. An absolutist view of the former leads to insensitivity as to the latter.
3. See, e.g., Cape Publications, Inc. v. Hitchner, 514 So.2d 1136, 1137-1138 (Fla.App.1987); Loft v. Fuller, 408 So.2d 619, 622 (Fla.App.1981).
4. The consequences of the Court's ruling-that a State cannot prevent the publication of private facts about its citizens which the State inadvertently discloses-is particularly troubling when one considers the extensive powers of the State to collect information. One recent example illustrates this point.
5. The Court does not address the distinct constitutional questions raised by the award of punitive damages in this case. Ante, at 541, n. 9. Consequently, I do not do so either. That award is more troublesome than the compensatory award discussed above. Cf. Note, Punitive Damages and Libel Law, 98 Harv.L.Rev. 847 (1985).