One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.

Ordinarily, reporters or photographers are liable for intrusion only through their own affirmative acts. Therefore, two well-known columnists who published details of documents that were removed improperly from a senator's office were held not liable to the senator for intrusion when they had no role in obtaining the documents. Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969). Similarly, in Bilney v. The Evening Star, 406 A.2d 652, 43 Md. App. 560 (1979), a newspaper was held free of liability for publishing the dismal academic records of six University of Maryland basketball players, where the reporters did not participate in illegally obtaining the players' transcripts. However, the court left unanswered the question whether two student reporters could be held liable for actually obtaining the transcripts for which they were paid $125 by the Washington Star. Media liability for publishing materials unlawfully obtained by others may be expanding, however. Recent cases have demonstrated a split among federal circuit courts of appeals on this issue. For example, in Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), an unknown person taped cell phone conversations between two union officials. The tapes were delivered to a union opponent, who made them available to the media. Excerpts from the tapes were then broadcast on local radio stations. The union officials sued the media defendants for violation of state and federal wiretap laws. The court held that the First Amendment rights of the defendants prohibited the damages provisions of the wiretap statutes from being enforced against the press.

Conversely, in Peavy v. WFAA-TV, 221 F.3d 158 (5th Cir. 2000), neighbors of a school board official taped hundreds of his cordless telephone conversations and provided them to a WFAA reporter. The tapes were never aired, but an award-winning series of reports based in part on their contents was broadcast. The school board official, after being acquitted of bribery charges, sued the television station. Noting that the reporter had "participated" in intercepting the phone calls (he had, for example, told the couple who recorded the conversations not to edit them), the court held that WFAA and the reporter were potentially liable under the wiretap statute. The Supreme Court has agreed to review the issues raised by these cases and should issue a decision sometime in 2001.

In attempting to predict whether newsgathering efforts are likely to pass muster, it should be remembered that the majority of courts adhere to the view that the First Amendment does not confer a right of access to news sources not available to the public generally. See Houchins. A photographer with WTMJ-TV in Milwaukee found this out the hard way upon his refusal to leave a crime scene cordoned off to the public. The photographer's claim, following his arrest on disorderly conduct charges for his refusal to leave the scene, that the First Amendment gave him a right of access to the scene was unavailing. Oak Creek v. Ah King, 436 N.W.2d 295 (Wis. 1989).

Going even further than Oak Creek, the Second Circuit Court of Appeals, in dicta, censured both the government and media for their actions in Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied, 115 S. Ct. 1689 (1995). Treasury Agents agreed to be accompanied by a camera crew from CBS's "Street Stories" in the agents' execution of a search warrant. In fact, the agents asked the crew to film certain footage. The Second Circuit noted CBS' compliance with the requests and called the actions of both government and media "excessive." With the increased use of "ride along" investigations, this case points out the importance that the media maintain its independence from the government not only to minimize liability but also to safeguard its status as a neutral reporter.

Even though the plaintiff's role of "actor" in an event having news value was not of his own volition -- having been thrust upon him by the investigating officers by mistake -- the fact remains that he was in a public place and present at a scene where news was in the making.
Id. at 40. Similarly, in Bisbee v. Conover, 452 A.2d 689 (N.J. App. 1982), the court granted summary judgment in favor of a newspaper that printed an article regarding the sale of a local historic house accompanied by a photograph of the house from the street. The court found that the photograph was taken from a public thoroughfare and merely showed a view available to any bystander. See also Wehling v. CBS, 721 F.2d 506 (5th Cir. 1983) (television broadcast showing residence of plaintiff who allegedly defrauded federal government did not invade plaintiff's privacy because it "provided the public with nothing more than could have been seen from a public street").

A St. Petersburg television station was sued after it broadcast a videotape depicting the plaintiff being arrested while dressed in underwear and a T-shirt. The court in Spradley v. Sutton, 9 Med. L. Rep. (BNA) 1481 (Fla. 6th Cir. Ct. 1982), found that the embarrassment the plaintiff may have suffered as a result of the broadcast was inadequate to defeat the right of the press to cover the arrest, which was an event of legitimate public concern. Further, the court held that because plaintiff was visible to the public in his underwear when arrested, "[t]here could be no liability for giving further publicity to what [plaintiff] himself . . . left to public view." Id. at 1483.

The more difficult cases under the "plain view" doctrine involve situations that skirt the boundaries of the private facts privacy tort and the cause of action for intentional infliction of emotional distress. In Cape Publications v. Bridges, 423 So. 2d 426 (Fla. 5th DCA 1982), rev. denied, 431 So. 2d 988 (Fla.), cert. denied, 464 U.S. 893 (1983), plaintiff had been held hostage by her husband and had been forced to disrobe in an effort to prevent her escape. The plaintiff's husband shot himself and the frightened wife rushed from the building wearing only a dishtowel clutched against the front of her body. Emphasizing the newsworthiness of the event and stating that at some point the public interest in obtaining information predominates over an individual's right of privacy, the court reversed a jury verdict in favor of the plaintiff. Since the case turned on the legitimate public interest of the event, rather than on the fact that Mrs. Bridges may have been outside the privacy sphere when the photo was taken, it probably fits more neatly into the "private facts" category of privacy litigation in which newsworthiness is the classic defense. In disposing of the Bridges case, the court declared:

It is settled law in Florida that the right of privacy does not necessarily protect a person against the publication of his name or photograph in connection with the dissemination of legitimate news item or other matters of public interest . . .

Although publication of the photograph, which won industry awards, could be considered by some to be in bad taste, the law in Florida seems settled that where one becomes an actor in an occurrence of public interest, it is not an invasion of her right to privacy to publish her photograph with an account of such occurrence.
Id. at 427.

Another case in point was decided by the California Supreme Court in June, 1998. A passenger injured in a motor vehicle accident was found to have no claim for invasion of privacy for television news footage of the passenger pinned in her vehicle at the accident scene. However, the court found that the passenger had a justifiable expectation of privacy inside the air-rescue helicopter that transported her to the hospital and that she had a viable invasion of privacy claim for the broadcast of footage taken in the helicopter. Shulman v. Group W Prods., Inc., 955 P. 2d 469, 74 Cal. Rptr. 2d 843, (Cal. 1998)

Strictly speaking, the newsworthiness of the information sought is not a defense in an intrusion case. For example, if there has been a highly offensive intrusion upon seclusion, the defendant is liable even if the information gathered is newsworthy. In close cases, however, the newsworthiness of the subject matter may lead judges to hold that no intrusion has been committed.

By contrast, in Le Mistral v. CBS, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978), the court upheld a jury verdict in favor of a restaurant on an intrusion claim. The CBS film crew had, in the words of the trial court, "burst into the plaintiff's restaurant in noisy and obtrusive fashion, and following the loud commands of the reporter," photographed the patrons dining. CBS, guilty of trespass through the admission of its own employees, took the position that it entered the restaurant in the course of newsgathering after the restaurant was cited for sanitation code violations.

The Stafford and Le Mistral cases can be distinguished in that the owner of the bar in Stafford consented to the presence of the film crew. It could be argued that the patrons in Le Mistral, as opposed to the restaurant owners, could not have maintained an action for intrusion since they had no legitimate expectation of privacy in a public restaurant.

Generally, intrusion exposure can be eliminated if the following statements are true:
a. the newsgatherer neither illegally obtained the information, recordings, film, or photographs, nor acted in a "highly offensive" manner in obtaining the material;

b. the subject matter is newsworthy -- more specifically, it is of legitimate public interest; and

c. the newsgatherer did not enter, physically or by any other means, the "privacy sphere" where the subject of the newsgathering efforts reasonably would not expect to find him; or

d. even if a highly offensive intrusion otherwise would have been committed, the plaintiff or his agent consented to it.

There is a basic conflict between the newsgathering functions of the press and the privacy interests, at least in a nonlegal sense, of the subjects of inquiry. However, there are still methods by which the press can reduce its risks of litigation and liability. Such self-protective measures often can be reduced to the use of common sense and the exercise of good taste.

Robert Giles, former executive editor of the Rochester Times-Union, has written some ground rules for reporters who cover disasters and human tragedies such as those that occurred in Fletcher. Giles cautions reporters against breaking and entering in search of pictures or n interview; he advises reporters to show a sense of feeling and to make sure the survivors and relatives of victims understand that what has happened is news. He tells his reporters to be good listeners and establish a trust with those persons interviewed. Finally, he warns against the temptation of running with the pack, particularly good advice where others seem oblivious to invading privacy rights. Goodwin, Groping for Ethics in Journalism 223 (1983). These suggestions should be followed not only to avoid lawsuits, but also to improve the quality of journalism practiced by the reporter. By employing common sense and a measure of ethics, the skillful reporter will be able to acquire the same, or better, information than the reporter who is insensitive to intrusion issues.

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

And even if Sidis had loathed public attention at that time, we think his uncommon achievements and personality would have made the attention permissible. Since then, Sidis has cloaked himself in obscurity, but his subsequent history, containing as it did the answer to the question of whether or not he had fulfilled his early promise, was still a matter of public concern. The article in The New Yorker sketched the life of an unusual personality, and it possessed considerable popular news interest.

Revelations may be so intimate and so unwarranted in view of the victim's position as to outrage the community's notions of decency. But when focused upon public characters, truthful comments upon dress, speech, habits, and the ordinary aspects of personality will usually not transgress this line. Regrettably or not, the misfortunes and frailties of neighbors and "public figures" are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.

We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public. At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.
Id. at 494-95.

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), the United States Supreme Court struck down a Massachusetts statute that prohibited press access to rape trials of minor victims. The Court's opinion suggests that a claim under the private facts branch of privacy might lie, under certain circumstances, for publication of the names of victims of sex crimes.

Various courts presented with privacy claims based on information from other than public records nonetheless have relied on Cox Broadcasting to establish constitutional protection if the publication contains accurate information relating to public figures or is otherwise a matter of public concern. This "public interest" privilege has been found to prevent a suit brought by a private person if there is a "logical nexus" between that person's conduct and the matter of legitimate public interest. See Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980); see also Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir. 1981); Bichler v. Union Bank, 715 F.2d 1059, vacated, 718 F.2d 802 (6th Cir. 1983). The "public interest" privilege is far from absolute, however, and courts will evaluate critically the "logical nexus" requirement. See, e.g., Vassiliades v. Garfinckel's Brooks Bros., 492 A.2d 589 (D.C. App. 1985).

While judging the connection between the complaining individual and the matter of legitimate public interest is fact-dependent, the analysis has been designed to give wide berth to free press rights. In the most closely watched privacy suit in recent memory, Shulman v. Group W Productions, Inc., 955 P. 2d 469 (1998), the California Supreme Court considered whether a defendant who broadcast footage of a victim's traumatic experience and comments at an accident scene and in an emergency helicopter invaded the victim's privacy. Emphasizing that the analysis of a claim for wrongful publication of private facts should produce predictable answers, the Court held, consistent with its view of the First Amendment, that the test for newsworthiness of private facts is whether the relevance of the disclosure is "greatly disproportionate" to a matter of legitimate public interest. And in holding that the disclosure of the plaintiff's private, medical facts and suffering was substantially relevant to the newsworthy subject of the broadcast (the rescue and medical treatment of accident victims), the Court cited a First Amendment restriction on privacy claims worth remembering, "Liability for disclosure of private facts is limited to the extreme case, thereby providing breathing space needed by the press to properly exercise effective editorial judgment."

Despite the difficulty of applying the public interest privilege, it offers strong constitutional protection for the news media. The Ninth Circuit has ruled that once a truthful article is deemed newsworthy, it would violate the First Amendment to return a damage award in favor of the offended plaintiff. In Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), the court gave constitutional force to the newsworthiness defense contained in the Second Restatement of Torts, which states:

In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.
Id. at 1129 (quoting Restatement (Second) of Torts Section 652D, comment h).

The Virgil case illustrates how a seemingly innocuous feature story can lead to expensive litigation. Sports Illustrated magazine prepared a profile of Mike Virgil, an expert body surfer. At first, Virgil cooperated with the magazine. Later, he attempted to revoke his consent to the interviews already given. The story portrayed Virgil as a showoff who, on various occasions, put out a cigarette in his mouth, dived down a flight of stairs to impress some women, purposely injured himself so he could collect unemployment compensation and go surfing, ate spiders, and bit off the cheek of a man in a gang fight.

When the case was returned by the Ninth Circuit to the trial court, Sports Illustrated won a summary judgment on the grounds that the facts were newsworthy and were not so highly offensive as to invade Virgil's privacy. The court found the strange details of Virgil's life neither morbid nor sensational:

In fact, they connote nearly as strong a positive image as they do a negative one. On the one hand, Mr. Virgil can be seen as a juvenile exhibitionist, but on the other hand he also comes across as the tough, aggressive maverick, an archetypal character occupying a respected place in the American consciousness. Given this ambiguity as to whether or not the facts disclosed are offensive at all, no reasonable juror could conclude that they were highly offensive.
Virgil v. Time, Inc., 424 F. Supp. 1286, 1289 (S.D. Cal. 1976).

A more difficult question arises when a newspaper publishes the name of the victim of a sex crime and the name was gathered from sources not in public records. A jury in Jacksonville returned a large verdict against a small weekly newspaper for the truthful publication of the name of a rape victim who reported the crime to the police. The newspaper learned the woman's name from reviewing police reports and inadvertently -- and against its own newsroom policy -- failed to delete the woman's name. Although the plaintiff relied on the Florida statute barring publication of the name of a rape victim rather than traditional invasion of privacy concepts, the lawsuit still must be considered a privacy case.

The U.S. Supreme Court, in a landmark June 1989 decision that overturned the jury verdict against the newspaper, held that damages cannot be awarded against a party publishing truthful information obtained by lawful means "about a matter of public significance" unless doing so serves a state interest of the highest order. See The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Florida statute which gave rise to the lawsuit and prohibits the disclosure of a rape victim's name, even when lawfully obtained, was found not to meet the constitutional criteria.

Public entities increasingly excuse refusal of access to public records by citing their fear of liability for disclosure of private facts within public records. In Doe v. New York City, 15 F.3d 264 (2d Cir. 1994), the Second Circuit Court of Appeals addressed the invasion of privacy claims against New York City for its announcement in a press release of the settlement of a discrimination claim -- arising out of Doe's HIV positive condition -- brought by Doe. Although Doe was not named in the release, he was identifiable. Such settlements usually are a matter of public record, but the city agreed to confidentiality in Doe's case. Overruling the district court, the Second Circuit held that an individual has a constitutional right of privacy in medical information and that, therefore, its disclosure could form the basis of an invasion of privacy cause of action. The case was remanded for trial.

It is true that a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public legitimate interest in his doings, his affairs, and his character, may be said to have become a public personage, and to that extent thereby relinquishes at least a part of his right of privacy. There may be a limited scrutiny of the "private life" of any person who has achieved, or who has thrust upon him, the status of a "public figure."
Cason v. Baskin, 30 So. 2d 635, 638 (Fla. 1947) (citations omitted).

Invasion of privacy by publication of private facts could be accomplished, according to the Florida Supreme Court, only when "the community has no legitimate concern" in those facts. Id. More recent Florida cases continue to recognize the existence of the newsworthiness defense to this form of invasion of privacy:
1. (1) In a 1989 decision, the Florida Supreme Court held that a newspaper publisher could not be liable for damages for disclosing the contents of a confidential Department of Health and Rehabilitative Services report mistakenly released by the trial judge's secretary to a reporter after the conclusion of a child-abuse trial. The report, containing allegations of child abuse that were the subject of the trial, was confidential under Sec. 827.07(15), Fla. Stat. In reversing the trial court's finding that the contents of the report were not of legitimate public concern (a prerequisite to filing a lawsuit based on publication of "private facts"), the Florida Supreme Court found that criminal prosecutions are by their very nature "without question events of legitimate concern to the public" and emphasized that the published information was obtained lawfully and legitimately in the public domain. Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989);

2. (2) Florida's Third District Court of Appeal in 1993 denied recovery to a woman who claimed that a television news broadcast invaded her privacy by revealing her name change that occurred when she got divorced. The name change was a matter of public record. Woodard v. Sunbeam Television Corp., 616 So. 2d 501 (Fla. 3d DCA 1993). Accord Florida v. Johnson, 22 Media L. Rep. (BNA) 1058 (Fla. Palm Beach Cty. Ct. 1993) (mayor's publication of names of persons arrested for solicitation of sexual activity -- found in public record -- not actionable invasion of privacy); accord Florida v. Mackie, 22 Media L. Rep. (BNA) 1060 (Fla. Palm Beach Cty. Ct. 1993) (same);

3. (3) It did not invade a widow's right of privacy to publish a factual account of the murder of her husband, according to a trial court decision in Duval County in Nelson v. Globe Communication Corp., 2 Media L. Rep. (BNA) 1219 (Fla. 4th Cir. Ct. 1977);

4. (4) A newspaper article about a drug treatment program did not invade a woman's privacy when it published the factual statement that she had attempted to escape from the program's custody in Stevenson v. Nottingham, 4 Media L. Rep. (BNA) 1585 (Fla. Cir. Ct. 1978), aff'd, 371 So. 2d 604 (Fla. 2d DCA 1979);

5. (5) However, there was no newsworthiness in a newspaper advertisement stating "Wanna Hear a Sexy Telephone Voice? Call _______________ and Ask for Louise." The listed number was the correct telephone number for one Louise Harms, who successfully maintained a privacy lawsuit against a newspaper in Harms v. Miami Daily News, Inc., 127 So. 2d 715 (Fla. 3d DCA 1961);

6. (6) A newspaper published an article describing plaintiff's involvement in an altercation that took place in a public office. The information for the article was gleaned from the public records. The court in El Amin v. Miami Herald, 9 Media L. Rep. (BNA) 1079 (Fla. Cir. Ct. 1983), held the publication was not actionable;

7. (7) A witness who testified at a murder trial had no claim for invasion of privacy against writers of a song that implied her participation in the murder. While she was not a voluntary participant in the trial, she nonetheless was involved in an event of public interest, and her claim was precluded by the decision of a federal appeals court in Valentine v. CBS, 698 F.2d 430 (11th Cir. 1983); and

8. (8) Florida appellate courts have relied upon the Cox decision. The Second District Court of Appeal denied a claim by a rape victim against a television station that broadcast her testimony. Doe v. Sarasota-Bradenton Television, 436 So. 2d 328 (Fla. 2d DCA 1983). Accord Williams v. New York Times, 462 So. 2d 38 (Fla. 1st DCA 1984).

9. (9) A contract right to publish does not necessarily extinguish a plaintiff s invasion of privacy claim against the publisher. In Facchina v. Mutual Benefits Corp., 27 Med. L. Rptr. 2168 (Fla. 4th DCA 1999), the plaintiff entered into a contract with defendants which gave defendants the right to use his photograph for advertisements regarding the purchasing of life insurance policies. Plaintiff alleged that defendant published his picture in such a way that the ad to imply that he was homosexual and afflicted with AIDS. The appeals court held that "a person may have a contractual right to publish the likeness of another without breaching a contract giving him the right to publish, but may still abuse that right and publish in such a manner as to violate the subject s personal, privacy interests." The insurer-publisher essentially exceeded the scope of the plaintiffs consent to appropriate his name and likeness for commercial gain in violation of 540.08 of the Florida Statutes and invaded the plaintiff s privacy by publishing private facts.

But one 1991 Florida state court decision, while finding a traditional publication of private facts claim legally insufficient, offers a specter of another variety of invasion of privacy liability for publication of private facts. In Armstrong v. H & C Communications, Inc., 575 So. 2d 280 (Fla. 5th DCA 1991), the Florida Fifth District Court of Appeal used a modern-day application of the ancient "outrage" claim as a means to avoid the hurdles to a traditional publication of private facts invasion of privacy claim. The case arose from a broadcast by an Orlando area television station of a video tape of a missing child's skull on the 6:00 news. Relatives of the missing child sued the station. Not surprisingly, the traditional publication of private facts claim was found insufficient as a matter of law because the subject matter was deemed to be of legitimate public interest (a finding that triggers First Amendment protection of suits aimed at publication of true, but "private," facts). What makes the Fifth District's decision anomalous is that, despite its findings that the subject matter was of legitimate public interest, the court allowed the "outrage" claim to survive by holding that proof of publication of anything that could be found by a jury to be "outrageous" (which is only one of several requirements for a publication of private facts/invasion of privacy claim) could entitle a claimant to civil damages.

"Private facts" may come into play beyond the confines of civil lawsuits based upon invasion of privacy. In an important 1988 decision, the Florida Supreme Court found that a litigant's interest in preventing the disclosure of private facts is normally not sufficient to justify closure of judicial proceedings involving that person. A Panama City newspaper contested the closure of the divorce proceedings of Dempsey Barron, a Florida senator. The trial court, finding that there was "private" civil litigation in Florida, had closed the proceedings to the public and sealed the court file to prevent the disclosure of certain sensitive information affecting one of the parties. The intermediate appellate court reversed, ordering the court files opened to the public. In so doing, the appellate court found that the provision of the Florida Constitution precluding governmental intrusion into private lives did not create a right to private judicial proceedings. Florida Freedom Newspapers, Inc. v. Sirmons, 508 So. 2d 462, 463 (Fla. 1st DCA 1987). The Florida Supreme Court affirmed the decision, but noted that the Florida constitutional right to privacy could form a basis for closure under appropriate circumstances. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (1988). Such circumstances include, inter alia, complying with public policy as set forth in the constitution, statutes, and case law; protecting trade secrets or a compelling governmental interest (e.g., national security, confidential informants); and avoiding injury to innocent third parties. The court further noted that "it is generally the content of the subject matter rather than the status of a party that determines whether a privacy interest exists and closure should be permitted," and emphasized that a privacy claim may be negated if the subject matter concerns a position of "public trust" held by the individual seeking closure. Id. at 118.

A Florida trial court extended the Barron reasoning dangerously far in finding that the family members of murder victims have a disclosural right of privacy in even records which are public. Florida v. Rolling, Case No. 91-3832 CF A (Fla. 8th Cir. Ct. Jul. 27, 1994). However, Florida's Third District Court of Appeal squarely rejected the disclosural right in Doe v. American Lawyer Media, L.P., 639 So. 2d 1021 (Fla. 3d DCA 1994).

And in 1993 Florida's Fourth District Court of Appeal, following the lead of the United States Supreme Court in The Florida Star, affirmed the Palm Beach County Circuit Court's October 24, 1991 order in State v. Globe Communications Corp., 622 So. 2d 1066 (Fla. 4th DCA 1993), striking down as unconstitutional Sec. 794.03, Fla. Stat., which prohibits the publication of a rape victim's name. Although the decision is not binding on state courts outside Palm Beach County, it is instructive. Unlike the situation in The Florida Star case, the publisher in the Globe case had no public records source for the information; it was obtained through community sources. The court held that because the information was truthful, of legitimate public interest, and was in "the public domain" at the time of publication, publishing the victim's name could not be prohibited lawfully.

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if the false light in which the other was placed would be highly offensive to a reasonable person, and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Sanctions against either innocent or negligent misstatement would represent a grave hazard of discouraging the press from exercising the constitutional guarantees.
' ' '

But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity in the case of alleged defamation of a public official concerning his official conduct.
' ' '

We find applicable here the standard of knowing or reckless falsehood, not through blind application of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon consideration of the factors which arise in the particular context of the application of the New York statute in cases involving private individuals.
385 U.S. at 389-90. Accord, Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994) (rejecting false light claim of convicted former undercover narcotics agent against his former spouse/colleague's account in the book and movie "Rush"). See also Lamonaco v. CBS, Inc., 21 Media L. Rep. (BNA) 2193 (D.N.J. 1993), aff'd, 27 F. 3d 557 (3d Cir. 1994) (false light claim cannot be raised by family members).

3. Confusion in Florida Courts

The enduring problem with the false light publicity claim is that it duplicates a defamation claim. Not surprisingly, a number of states -- Georgia, Mississippi, North Carolina, and Texas to name a few -- have renounced false light as a viable theory of recovery.

Although the debate continues, Florida courts have been guided by the Supreme Court's recognition of the tort in Florida Publishing Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976). In the decision, the Supreme Court addressed a false light claim, and held that falsity is the lynchpin of the claim. Still, considerable confusion has been spawned by Florida courts wrestling with a claim aimed at an unflattering message and cast as false light publicity or false light invasion of privacy.

Most recently, in December 2003, a Pensacola circuit court jury returned an $ 18 million compensatory damages verdict against Pensacola's News-Journal (Anderson v. Gannett Co., Inc.) in what the plaintiff argues is false light invasion of privacy by the newspaper. Although the newspaper article at issue is a true rendition of events, the trial judge allowed the case to be decided by a jury through a ruling that falsity need not be proved as an element of a false light claim. The judge relied upon the Second District Court of Appeal's 2001 decision in Heekin v. CBS, 789 So.2d 355. In starting a veritable chain reaction of incorrect rulings on the proof requirements for false light claims, the Second District in Heekin misread Cason v. Baskin, 155 Fla. 198 (1944), a "private facts" invasion of privacy case, in concluding that truth is not a defense to a false light claim. The Pensacola paper plans to appeal the false light liability and damages verdict to ensure that plaintiffs targeting publication on a false light theory do not evade the applicable common law and constitutional rules protecting the press in these cases.