Lowe v. Hearst Communications, Inc.

414 F.Supp.2d 669

John Patrick LOWE, Bankruptcy Trustee, Plaintiff, v. HEARST COMMUNICATIONS, INC. and Hearst Newspapers Partnership, L.P., Defendants.

No. SA-05-CA-554-OG.

United States District Court, W.D. Texas, Sap Antonio Division.

February 6, 2006.

COPYRIGHT MATERIAL OMITTED

Broadus Autry Spivey, Spivey & Ainsworth, P.C., Austin, TX, for Plaintiff.

Karen Ann Monsen, Stephen R. Fogle, Jackson Walker, L.L.P., San Antonio, TX, Charles L. Babcock, Jackson Walker LLP, Dallas, TX, for Defendants.

AMENDED OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

GARCIA, District Judge.

Defendants' motion for partial reconsideration (docket no. 21) is GRANTED; the Court's opinion and order of December 7, 2005 is WITHDRAWN, and the following opinion and order is substituted in its place.

Before the Court is defendants' motion to dismiss the complaint. FED. R. CIV. P. 12(b)(6).¹1 Plaintiff, John Patrick Lowe, Bankruptcy Trustee for the Estates of Mary and Ted Roberts, brought this suit seeking damages for public disclosure of private facts and intentional infliction of emotional distress. The disclosure of private facts occurred with the publication on June 13, 2004 in the "San Antonio Express-News,"² a daily newspaper of general circulation, of an article headlined, "Sex, lawyers, secrets at heart of sealed legal case" ("the article"). The article was written by Maro Robbins and Joseph S. Stroud. The article³ describes how Ted Roberts and his wife Mary bilked several of Mary's lovers out of tens of thousands of dollars. According to the article, Mary ran a personal ad on the internet seeking "erotic and intellectual" relationships with men. Ted would prepare draft petitions and settlement agreements and present them to Mary's lovers, naming them as potential defendants and threatening them with legal action that would publically expose their affairs with Mary. As many as five men ultimately entered into settlement agreements with Ted to avoid litigation. Ted collected from $75,000 to $155,000 from the men, according to the article.

Hearst intervened in a state court lawsuit involving the Robertses and a former associate of their law firm. In an appeal in that suit, the Texas Fourth Court of Appeals issued an opinion on August 29, 2003 holding valid a trial court order sealing from public view a set of documents referred to as the "202 Documents." Roberts v. West, 123 S.W.3d 436, 443 (Tex. App.-San Antonio 2003, pet. denied). The 202 Documents are described by the Court of Appeals as:

a group of documents which includes not only proposed pleadings but also related factual documents such as e-mails. The pleadings are a set of proposed petitions prepared by Ted Roberts, naming himself as plaintiff and his wife Mary as a defendant along with other third parties. Among the related documents are draft settlement agreements for the proposed defendants.

Roberts, 123 S.W.3d at 438 n.. 3.

On June 11, 2004, Mary Roberts received a call on her cell phone from Robbins and Stroud who identified themselves as Express-News reporters and told Roberts they were writing an article regarding Ted Roberts, the 202 Documents, and related matters. Ted Roberts delivered a letter to the Express-News that day warning against contravening the sealing order and noting the privacy issues involved. Also on June 11, the Robertses sought emergency relief from the Fourth Court of Appeals, which granted the relief and issued its mandate relating to its August 29, 2003 opinion. The mandate was delivered to the Express-News on June 11. The article was published two days later. At some point thereafter, the Robertses declared bankruptcy. The bankruptcy trustee is pursuing this action on behalf of the Robertses' bankruptcy estates.

Plaintiff contends that the article included information contained in the 202 Documents and thus violated the sealing order and mandate. There seems to be no dispute that the 202 Documents consist largely of the proposed petitions and settlement agreements drafted by Ted and presented to Mary's various paramours. Hearst contends that the Express-News obtained the 202 Documents and various court transcripts separate and apart from the judicial process.

I. Invasion of privacy.

An individual has the right to be free from the public disclosure of embarrassing private facts about the individual. Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex.1976). To establish the tort of invasion of privacy based upon the public disclosure of private facts, the plaintiff must demonstrate that (1) publicity was given to matters concerning his private life, (2) the publication of which would be highly offensive to a reasonable person of ordinary sensibilities, and (3) the matter publicized was not of legitimate public concern. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74 (Tex.1995); Industrial Found. of the South, 540 S.W.2d at 682.

Plaintiff argues that the Court must remain narrowly focused on whether he has properly pleaded a cause of action for invasion of privacy based on the Express-News' publication of facts contained in the sealed 202 Documents. Hearst counters that plaintiff cannot legally establish a privacy claim because the Robertses had no expectation of privacy and because the article reported on a matter of legitimate public concern.

A. Legally cognizable expectation of privacy.

Hearst first argues that the Robertses lacked any legally cognizable expectation of privacy in the facts published because they had already distributed the draft petitions, settlement agreements, and e-mails contained in the 202 Documents to their potential legal adversaries. Plaintiff asserts that this argument is an assertion of a defense, not a pleading defect. Plaintiff also argues that, in any event, the "publication" did not extend beyond the Robertses and Mary's paramours — they were not circulated publically.

The tort requires circulation of the private facts to more than a small, closed circle of people. "`Publicity' requires communication to more than a small group of persons; the matter must be communicated to the public at large, such that the matter becomes one of public knowledge." Industrial Found. of the South, 540 S.W.2d at 683-84 (citing RESTATEMENT (SECOND) OF TORTS § 652D, comment a). The mere fact that the Robertses disclosed these documents to a handful of individuals who had every incentive not to disclose them publicly does not destroy the Robertses' expectation of privacy as a matter of law.

B. Legitimate public concern.

The third element that plaintiff would have to prove to establish invasion of privacy by public disclosure of private facts is that the matter publicized was not of legitimate public concern. Star-Telegram, Inc., 915 S.W.2d at 473-74. Whether a matter is of public concern is a question of law for the court. Cinel v. Connick, 15 F.3d 1338, 1346 (5th Cir. 1994). The inquiries regarding legitimate public concern are the same under the First Amendment and the law of Texas. Ross v. Midwest Communications, Inc., 870 F.2d 271, 273 (5th Cir.1989).

"[Wlhere the facts published are of `legitimate public concern,' the right to publish information will overcome privacy rights." American Civil Liberties Union of Mississippi, Inc. v. State of Miss., 911 F.2d 1066, 1071 (5th Cir.1990). The privilege extends beyond the dissemination of news "to information concerning interesting phases of human activity" even when the individuals thus exposed did not seek or have attempted to avoid publicity. Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir.1980). "The privilege is broad and extends beyond subjects of political or public affairs to all matters of the kind customarily regarded as `news' and all matters giving information to the public for purposes of education, amusement or enlightenment, where the public may reasonably be expected to have a legitimate interest in what is published." Anonsen v. Donahue, 857 S.W.2d 700, 703-04 (Tex. App. — Houston [1 Dist.] 1993, writ denied).

The risk of ... exposure [of the individual to the public] is an essential incident of life in a society which places a primary value on freedom of speech and of press. "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."

Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (quoting Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)).

Reports of the investigation of crimes or matters pertaining to criminal activity have almost without exception been held to be newsworthy or matters of legitimate public interest as a matter of law. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) ("commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions ... are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government"); Cinel, 15 F.3d at 1345-46 (even though plaintiff, a former priest, was not charged with a crime, facts indicating that he may have possessed child pornography and engaged in homosexual activity — a crime in Louisiana — were matters of public concern; also church's response to activities which occurred during plaintiffs priesthood was issue of public concern); see also Dresbach v. Doubleday & Co., 518 F.Supp. 1285, 1290 (D.D.C.1981) (dicta) ("The public has a legitimate interest in the facts about past crimes and their investigation and prosecution, as well as the possible motivating forces in the background of the criminal.").

Without question, the facts depicted in the article are matters of legitimate public concern. The article described an alleged blackmail scheme by...