Opinion
Docket No. 27118.
Filed: June 21, 2001.
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. D. Duff McKee, District Judge.
District court's grant of summary judgment, reversed.
John L. Runft, Boise, for appellant. Givens, Pursley, LLC., Boise, for respondent. Debora K. Kristensen argued.
This is an appeal from the district court's order granting summary judgment in favor of Federated Publications, Inc., d/b/a The Idaho Statesman ("Statesman") and dismissing appellant, Fred Uranga's ("Uranga") claims for invasion of privacy and reckless infliction of emotional distress arising out of an article published by the Statesman containing a photographic representation of a forty-year-old statement accusing Uranga of homosexual activity.
I. FACTUAL AND PROCEDURAL BACKGROUND
On Sunday, October 15, 1995, the Statesman published an article entitled "The Boy Most Likely" relating events occurring in Boise in 1955 and 1956 involving allegations of pedophilic and homosexual activity resulting in a "morals" investigation involving approximately 1,500 witness interrogations and 16 arrests. The events became known as the "Boys of Boise" scandal. The article specifically recounted the impact of these investigations on Frank Jones, the son of a Boise City Councilman, who was kicked out of Westpoint and eventually committed suicide. The October, 1995 article contained an unedited reprint of a sworn statement by Melvin Dir ("Dir Statement") dated January 7, 1956, stating that Dir had a gay affair with Frank Jones and Jones had recounted to him "gay affairs that he had had with . . . his cousin Fred Uranga." The body of the article also referred to the statement and restated that after Dir and Frank Jones "had mutual oral copulation . . . they talked about sexual liaisons Frank had had with a high school classmate and with a cousin — both of whom Frank identified by name, according to Dir." The article does not otherwise mention Uranga.
The Dir Statement was filed with the Clerk of the Idaho Fourth District Court in Case No. 2203 and remains there today. Dir pled guilty so he was never tried and other than to implicate Frank Jones, the Dir Statement was not used in any further proceedings.
After the Statesman story was published, Uranga submitted a written request for retraction of the one sentence of the Dir Statement that named him, claiming the statement was libelous and invaded his privacy. The Statesman responded, denying the request, and offering to publish Uranga's comments on the matter in a "Speaker's Corner" feature to appear on the editorial page or alternatively to publish an explanation of the inclusion of the Dir Statement.
On October 14, 1997 Uranga filed a Complaint alleging four causes of action against the Statesman; (1) invasion of privacy by intrusion, (2) invasion of privacy by publication of private facts, (3) invasion of privacy by placing plaintiff in a false light, and (4) intentional and/or reckless infliction of emotional distress. The Statesman responded with affirmative defenses including the fair report privilege and a constitutional privilege to publish information in the public record under the First and Fourteenth Amendments. The Statesman subsequently filed a motion for summary judgment. The district judge issued an oral ruling granting summary judgment to the Statesman based on its constitutional privilege arguments under Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) and the common law fair report privilege. A written order granting summary judgment and dismissing the Complaint with prejudice was issued October 20, 1998.
In the Brief in Support of Petition for Review and the Reply Brief in Support of Petition for Review, Uranga abandons the "false light privacy claim".
Uranga timely filed a notice of appeal. The appeal was assigned to the Court of Appeals, which upheld the district court's grant of summary judgment. The Court of Appeals found the imposition of liability on the Statesman for the publication of the Dir Statement would be violative of the First Amendment under Cox Broadcasting.
Uranga filed a timely Petition for Review, which this Court granted.
II. STANDARD OF REVIEW
When considering a case on review from the Court of Appeals, this Court gives serious consideration to the views of the Court of Appeals; however, this Court reviews the trial court's decision directly. State v. Benefiel, 131 Idaho 226, 953 P.2d 976 (1998).
This Court's review of a trial court's ruling on a motion for summary judgment is the same standard used by the trial court in originally ruling on the motion. Sun Valley v. Rosholt, Robertson Tucker, 133 Idaho 1, 3, 981 P.2d 236, 238 (1999) (citing Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994). Pursuant to I.R.C.P. 56(c), summary judgment must be entered when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." This Court liberally construes the record in favor of the party opposing the motion for summary judgment and draws any reasonable inferences and conclusions in that party's favor. Id. at 4, 981 P.2d at 239 (citing Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 869 P.2d 1365 (1994)). If the evidence reveals no disputed issues of material fact, what remains is a question of law, over which this Court exercises free review. Farm Credit Bank of Spokane, 125 Idaho at 272, 869 P.2d at 1367.
III. DISCUSSION
A. The Statesman does not have an absolute privilege to publish the Dir Statement.
1. The First and Fourteenth Amendments to the U.S. Constitution grant a broad, but not absolute, privilege to the press to publish matters of public record.
The Statesman argues it has an absolute constitutional privilege to publish the Dir Statement under United States Supreme Court precedent Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), The Florida Star v. B.J.F., 491 U.S. 524 (1989) and their progeny.
Cox Broadcasting, the only common law public disclosure tort case the United States Supreme Court has considered, involved a suit brought by the father of a deceased rape victim against a Georgia television station after the station reported the name of his victim-daughter. 420 U.S. at 474. The name had been obtained from judicial records open to public inspection during an open court session and maintained in connection with a public prosecution. Id. at 472-73. The father brought suit claiming his right to privacy had been invaded by the broadcast of his daughter's name. Id. at 474. The Georgia Supreme Court, relying on a Georgia statute prohibiting publication or broadcast of a rape victim's identity, held the broadcast of the victim's name was not privileged as newsworthy. Id. The state court further held the Georgia statute did not infringe on the television station's First Amendment rights. Id. at 475. The U.S. Supreme Court reversed. Id. at 497. The Court narrowly framed the issue before it as "whether, consistently with the First and Fourteenth Amendments, a State may extend a cause of action for damages for invasion of privacy caused by the publication of the name of a deceased rape victim which was publicly revealed in connection with the prosecution of the crime." Id. at 471. The Court held "[a]t 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 496. Justice White, writing for the majority, explained that in the face of the First Amendment, the interests of privacy fade when the information involved appears in the public record:
By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. . . . States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.
420 U.S. at 495. Justice White further cautioned that if there are privacy interests to be protected in the public record of judicial proceedings, public documentation and disclosure of the relevant information should be avoided, asserting the "States must respond by means which avoid public documentation or other exposure of private information." Id. at 496. In reaching this decision, the Court focused on the societal need for a press that can report fully and accurately on the proceedings of the government. Id. at 491-92. Specifically, "[w]ith respect to judicial proceedings . . . the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice." Id. at 492 (citing Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).
A similar conclusion was reached by the U.S. Supreme Court in The Florida Star v. B.J.F., 491 U.S. 524 (1989); however, the action was not pled as a common law tort but rather as a negligence action with the state criminal statute used as a predicate for application of the negligence per se doctrine. Id. at 539. In Florida Star, the U.S. Supreme Court found unconstitutional the imposition of liability against a newspaper under a Florida statute that made it a crime to publish the name of the rape victim. Id. at 541. The name of the victim, however, was not found in the record of judicial proceedings, but was obtained from a police report. Id. at 532. The Court did not directly apply the precedent of Cox Broadcasting, distinguishing Florida Star because the
role the press plays in subjecting trials to public scrutiny . . . is not directly compromised where, as here, the information in question comes from a police report prepared and disseminated at a time at which not only had no adversarial criminal proceedings begun, but no suspect had been identified.
Id. The Court again limited the holding, stating that:
We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense. We hold only that where a newspaper publishes truthful information which is lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order. . . .
Id. at 541.
In Idaho, we have applied the principles of Cox Broadcasting in only one case, Baker v. Burlington Northern, Inc., 99 Idaho 688, 587 P.2d 829 (1978). In Baker, this Court precluded a cause of action for invasion of privacy based on an employer's disclosure of information concerning an employee's criminal record. Id. at 692, 587 P.2d at 833. The employer had gained information from the public record including a guilty plea and withheld judgment to the crime of burglary one year earlier, and included this information in a letter of termination that the employer sent to the employee and placed in its employment files. Id. 689-90, 587 P.2d at 830-31. The plaintiff alleged his right to privacy was violated by his employer's disclosure of his criminal record. Id., 587 P.2d at 830-31. Citing Cox Broadcasting, we upheld the district court's grant of summary judgment denying a claim for public disclosure of private facts because the facts regarding Baker could not be "private" where "Baker's criminal activity was recent in origin and he was still on probation" and the publication "was merely a recitation of a public record of Baker's recent criminal activity." Id. at 692, 587 P.2d at 833.
The Statesman urges this Court to uphold the district court's determination that Cox Broadcasting creates an absolute privilege to report the information in the Dir Statement. Clearly, the implications of Cox Broadcasting and Florida Star for the aspect of the right to privacy that limits the publication of private facts are profound. Shulman v. Group W Productions Inc., 955 P.2d 469, 480 (Cal. 1988) (quoting Haynes v. Alfred A. Knoptf, Inc., 8 F.3d 1222, 1232 (7th Cir. 1993)). The U.S. Supreme Court "must believe that the First Amendment greatly circumscribes the right even of a private figure to obtain damages for the publication of newsworthy facts about him, even when they are facts of a kind that people want very much to conceal." Id. The U.S. Supreme Court's decisions are instructive on the strength of First Amendment protection and establish that "truthful reporting on current judicial proceedings, using material drawn from public records, is generally within the scope of constitutional protection." Id. at 480-81. However, the constitutional privilege established in Cox Broadcasting is not absolute. As Justice Rehnquist noted in his concurrence in Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979):
While we have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented.
Id. at 106 (citations omitted). The U.S. Supreme Court recently reaffirmed their refusal to construe First Amendment and privacy issues broadly and refused to "answer categorically whether truthful publication may ever be punished consistent with the First Amendment." Bartnicki v. Vopper, 532 U.S. ___, 2001 WL 530714 at *8 (2001).
Rather,
`[o]ur cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily. . . . We continue to believe that the sensitivity and significance of the interests presented in clashes between [the] First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.'
Id. (quoting Florida Star, 491 U.S., at 532-33). The U.S. Supreme Court's narrow review of clashes between the First Amendment and privacy, limiting their holdings to the interface between the press and privacy that each case presents, has specifically left open the question of "whether the State may ever define and protect an area of privacy free from unwanted publicity in the press." Cox Broadcasting, 420 U.S. at 491. See also, Florida Star, 491 U.S. at 541. The Supreme Court has not dealt with the interface between the press and privacy that this case presents: whether the First Amendment shield extends absolute protection to publish information contained in a forty-year-old public file not directly concerning a judicial proceeding. Unfortunately the parameters of the constitutional privilege under factually distinct circumstances have not been clearly delineated; nevertheless, because of the following factual distinctions between the case at hand and Cox Broadcasting, we find that case cannot fairly be read as controlling.
In Cox Broadcasting the information regarding the victim's name was obtained from several sources, including the murder and rape indictments that were part of the public record and from the reporter who personally attended the trial and took notes. 420 U.S. at 474, n. 3. The Court specifically focused on the source of the information published, recognizing that with regard to judicial proceedings "the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice." Id. at 492 (citing Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1555 (1966)). Furthermore, the Supreme Court reasoned that:
The 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 the government.
Id. at 492. We relied on this reasoning in Baker to find the claim for invasion of privacy was not actionable because the press' ability to report on recent criminal activity is of "critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." Baker, 99 Idaho at 692, 587 P.2d at 833 (quoting Cox Broadcasting, 420 U.S. at 495). The Supreme Court distinguished Florida Star on this basis, finding the press' responsibility to subject trials to public scrutiny was not compromised where information was disseminated before adversarial proceedings had begun. Florida Star, 491 U.S. at 532. A similar distinction can be made here. Melvin Dir, not Fred Uranga, was the subject of a criminal investigation, and the forty-year-old Dir Statement was not used in an official or judicial proceeding, was never accepted as evidence, and was not embodied in a court pleading. Although the Dir Statement is in Dir's criminal case file, and is open to the public, the record before us does not reveal why or how the handwritten unsworn statement became part of the court file. The press' responsibility to subject trials to public scrutiny, and to apprise the public of matters concerning criminal activity, is not compromised by rejecting an absolute privilege to publish information only tangentially related to a forty-year-old case file.
The Court in Cox Broadcasting also reasoned that "[b]y placing the information in the public domain on official court records, the State must be presumed to have concluded the public interest was thereby being served." 420 U.S. at 495. States may have some limited control over what information is placed in an official court record, and who has access to that information, but no such control can reasonably be maintained over every piece of information that makes its way into a court file. We cannot presume that deputy court clerks have the means of scrutinizing and controlling information they are asked to file, and by filing information, have concluded it is in the public interest to forever shield the press from liability for publishing that information.
Cox Broadcasting further denied liability based on a reluctance to establish a rule that would invite "timidity and self-censorship" in the press, making it "difficult for the media to inform citizens about the public business and yet stay within the law." 420 U.S. at 496. The mere possibility of liability in an extreme case such as this does not encroach upon the ability of the press to freely publish current information regarding judicial proceedings and discuss governmental affairs, nor does it impede the public's ability to gain information about criminal activity. In addition, as discussed below in Section B, 1, even absent an absolute privilege, the publication may nevertheless be shielded if it concerns a matter of legitimate public concern.
Uranga argues the case at hand is also distinguishable because it is exactly the one Cox Broadcasting acknowledged it did not have before it, namely "we do not have at issue here an action for . . . intrusion into a private area or a publication of otherwise private information that is also false. . . ." 420 U.S. at 489. Uranga contends Cox Broadcasting therefore does not control because the information in the Dir Statement is untrue. The U.S. Supreme Court holdings in Cox Broadcasting and Florida Star are imprecise, and interchange the word "truthful" and c"accurate". Cox Broadcasting demonstrates this imprecision by holding civil liability based upon the publication of "truthful" information contained in official court records is prohibited, while also stating the issue as whether the "accurate" publication of a rape victim's name contained in a judicial record subjects newspapers to liability. Id. at 491, 496. However, the opinion narrowly holds that "[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Id. at 496 (emphasis added). Therefore, Cox Broadcasting cannot be read to create an absolute privilege to publish false information contained in a public court document.
Finally, Cox Broadcasting and Florida Star both involved a state criminal statute sanctioning the publication of information obtainable through a public record. Although the Supreme Court in Cox Broadcasting also ruled on the broader issue precluding the tort of publication of private facts, the Court limited the holding to the narrow facts of the case. 420 U.S. 496-97. Additionally, in Florida Star, the high court found unconstitutional the criminal statute as well as application of a per se theory of negligence derived from the criminal statute, because of the categorical prohibition placed on the media. 491 U.S. 539-40. Idaho does not have a statute establishing such a categorical prohibition, nor does this case create such a prohibition. The Statesman's potential liability is based on common law tort theories as they apply to the facts of this case.
The U.S. Supreme Court has not established an absolute constitutional privilege of the press to publish information in a public file. Furthermore, the narrow holding and facts presented in Cox Broadcasting are clearly distinguishable from the case at hand. Therefore, we find the district court erred in granting summary judgment to the Statesman based on its application of Cox Broadcasting.
2. The common law fair report privilege does not create an absolute privilege to publish the Dir Statement.
The Statesman additionally asserts it has a privilege to report the information contained in the Dir Statement under the common law fair report privilege. The fair report privilege developed as an exception to the common law rule that the republisher of defamation was subject to liability similar to that of the original defamer. To ameliorate the chilling effect on the reporting of newsworthy events, there has developed a recognized privilege for the press to publish accounts of official proceedings or reports, even if they contain defamatory statements, so long as the account presents a fair and accurate summary of the proceedings. This privilege applies without the newspaper having to establish the truth of the substance of the statement reported. RESTATEMENT (SECOND) TORTS § 611 cmt. A; DAN B. DOBBS, THE LAW OF TORTS 1162 (2000).
§ 611 of the RESTATEMENT (SECOND) TORTS provides: "Report of Official Proceeding or Public Meeting. The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported."
Idaho Code § 6-713 codifies the common law fair report privilege with respect to defamation actions:
Privileged publication in newspaper defined. — A privileged publication in a newspaper which shall not be considered as libelous is one made . . . (4) By a fair and true report, without malice, of a judicial, legislative or other public official proceeding, or of anything said in the course thereof. . . ."
It is questionable whether this privilege applies not only in the context of a defamation action, but also here, as a defense to a claim of invasion of privacy. Even if this Court extended the fair report privilege to include claims of invasion of privacy, this privilege does not logically extend to cloak the press in an absolute privilege to publish a statement regarding Uranga's sexuality found in a forty-year-old court file where the statement was not used in an official or judicial proceeding, was never entered into evidence, and was not in a court pleading. Furthermore, any "official" action taken did not involve Uranga, and the Statesman story only tangentially reports on the judicial proceeding involving Dir; therefore, the essence of the story does not implicate the Statesman's need to report on judicial proceedings nor the public's right to scrutinize them.
The Statesman's publication of the Dir Statement containing reference to Uranga is not absolutely privileged as a matter of law under the fair report privilege; therefore the district court erred in granting summary judgment based on this privilege.
B. The tort claims for invasion of privacy by intrusion, publication of private facts and intentional infliction of emotional distress may proceed.
The issue presented by the Statesman's Motion for Summary Judgment was not whether Uranga could sustain his burden of proving the elements of his causes of action, but whether, even assuming he could sustain his burden, the Statesman was immune from liability under the constitutional and fair report privileges. Because we find the privileges asserted are not absolute, we must consider whether the tort claims may proceed.
1. Publication of private facts and intrusion upon seclusion.
Although the privilege established in Cox Broadcasting is not absolute, the First Amendment may nevertheless protect what would otherwise be an actionable invasion of privacy for publication of private facts in cases where publication involves the media. See Gilbert v. Medical Economics Co., 665 F.2d 305, 307 (10th Cir. 1981) (citing Cox Broadcasting, 420 U.S. 469) (citations omitted). Where a private facts tort is asserted against the media, the right of the individual to keep information private must be balanced against the rights of free speech and free press which protect the public's access to information on matters of legitimate public concern. Id. at 307. See also, Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 378 (Colo. 1997). In attempting to strike an acceptable balance between these competing interests, the majority of states provide for liability for publicizing matters concerning the private life of another "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." Gilbert, 665 F.2d at 307 (citing RESTATEMENT (SECOND) TORTS § 652D (1977). Under this theory, to state a cause of action for public disclosure of private facts, the plaintiff must plead (1) public disclosure; (2) of private, not public, facts; (3) the matter publicized was highly offensive to a reasonable person; (4) the matter publicized was not of legitimate public concern. See, e.g., Green v. Chicago Tribune Co., 675 N.E.2d 249 (Ill.App. 1 Dist. 1996). These elements are not specifically reflected in the tort for public disclosure of embarrassing private facts in Idaho, which historically consists of only three elements:
The U.S. Supreme Court's most recent discussion of the balance between privacy issues and the press reaffirmed their position that "privacy issues give way when balanced against the interest in publishing matters of public importance." Bartnicki, 2001 WL 530714 at *10. Bartnicki involves a suit brought under federal and state wiretapping statutes for the interception and publication of a cell phone conversation between the chief union negotiator and the union president involved in a contentious collective-bargaining negotiation between teachers and the local school board. Id. at *3-4. After the parties had reached an agreement, a radio commentator played a tape of the intercepted conversation on his public affairs talk show in connection with new reports about the settlement. Id. The U.S. Supreme Court addressed the narrow issue: "Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?" Id. at *7. The U.S. Supreme Court upheld the Court of Appeals determination that application of the wiretapping statutes in this case was unconstitutional because "they deter significantly more speech than necessary to protect the privacy issues at stake." Id. at *4, *11. The Court reasoned that the illegal conduct of the stranger who intercepted the cell phone conversation "does not suffice to remove the First Amendment shield from speech" that the Court had determined was "unquestionably a matter of public concern." Id. at *11. Bartinicki, although not a private facts tort case, highlights the importance of narrowing the private facts tort in Idaho to ensure potential liability under the tort does not stifle the press' ability to report on matters of legitimate public concern.
First, the disclosure of the private facts must be a public disclosure and not a private one. There must be, in other words, publicity. Second, the facts disclosed to the public must have been private facts, and not public ones. Third, the matter made public must be one which would be offensive and objectionable to a reasonable man or ordinary sensibilities.
Baker v. Burlington N., Inc., 99 Idaho 688, 691, 587 P.2d 829, 832 (1978) (quoting Peterson v. Idaho First Nat'l Bank, 83 Idaho 578, 583, 367 P.2d 284, 287 (1961)).
Unless we abandon the private facts tort completely we are at a theoretical risk of creating unconstitutional liability, especially where our tort law does not reflect a need to balance the interests of the press and a private individual. To accommodate this need, we find the fourth element, whether the matter is of legitimate public concern, must explicitly be included as an element of the tort claim for public disclosure of private facts.
Adoption of a fourth element to the claim of invasion of privacy for publication of private facts is not out of line with Idaho precedent that already implicitly discusses "legitimate public concern" as a factor of the tort in Idaho. For example, in Taylor v. K.T.V.B., Inc., 96 Idaho 202, 525 P.2d 984 (1974), a pre-Cox Broadcasting case involving an invasion of privacy action against a TV station for airing footage of the arrestee being arrested in the nude, this Court noted that persons charged with crimes are the "objects of legitimate public interest during a time after their conduct . . . has brought them to public attention" Id. at 205, 525 P.2d at 987 (quoting RESTATEMENT (SECOND) TORTS, § 867, cmt. c). Following this reasoning in Baker v. Burlington N., Inc., we found the disclosure of a recent criminal conviction in an employee record was not a disclosure of private facts. 99 Idaho at 692, 587 P.2d at 833. The element of "legitimate public concern" was also discussed more recently by this Court in Hoskins v. Howard, 132 Idaho 311, 971 P.2d 1135 (1998). In Hoskins, the plaintiffs brought an action for invasion of privacy against their neighbors for intercepting, listening, recording, and disclosing their cordless telephone conversation. Id. at 316, 971 P.2d at 1140. The defendants argued, in part, that the conversation was a matter of public concern since it involved a potential murder plot. Id., 971 P.2d at 1140. We speculated that neither K.T.V.B., nor Baker, directly support the assertion that alleged, but uncharged, criminal activities are of public concern. Id. at 316, n. 2, 971 P.2d at 1140, n. 2.
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 we had no concern.
RESTATEMENT (SECOND) TORTS § 652D cmt. h (1976). This newsworthiness test "properly restricts liability for public disclosure to the extreme case, thereby providing the breathing space needed by the press." Ozer, 940 P.2d at 378-79 (quoting Gilbert, 665 F.2d at 308). See also Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975). As a refinement of the RESTATEMENT's test for newsworthiness, many courts additionally assess whether there is a logical relationship or nexus, or lack thereof, between the events or activities that brought the person into the public eye and the particular facts disclosed. See, e.g., Shulman, 955 P.2d at 484-85. "This approach . . . balances the public's right to know against the plaintiff's privacy interest by drawing a protective line at the point the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report." Id. We agree these are relevant considerations to be analyzed in determining whether the publication of the Dir Statement, including Uranga's name, was a matter of legitimate public concern.
The question left open is whether the newsworthiness argument can be applied to information contained in court records after Cox Broadcasting. Because of the broad protection provided, the Supreme Court clearly feels matters in the public record are almost always of legitimate interest. Therefore, when a case involves any type of public record it will be a unique case, such as this one, where the newsworthiness test will even be applied. However, even a limited application of the newsworthiness test after Cox Broadcasting has been widely criticized. See Montesano v. Donrey Media Group, 668 P.2d 1081, 1088 (Nev. 1983); Romaine v. Kallinger, 537 A.2d 284 (N.J. 1988); Rawlins v. Hutchinson Publishing Co, 543 P.2d 988 (Kan. 1975).
The Ninth Circuit has found the jury may, in some circumstances, determine newsworthiness according to the mores of the community. Virgil, 527 F.2d at 1130. The court in Virgil recognized, however, that it is the function of the court to ascertain whether a jury question is presented. Id.
[T]he function of the court on motion for summary judgment is to decide whether, on the record, reasonable minds could differ. If in the judgment of the court reasonable minds could not differ, and the answer on which reasonable minds agree favors invocation of the privilege, then summary judgment for [the newspaper] would be appropriate.
Id. at 1131. The Ninth Circuit in Virgil recognized the importance in requiring a judge to make a threshold determine on whether a jury question exists, stating that:
When civil cases may have a chilling effect on First Amendment rights, special care is appropriate. Thus, a judicial examination at [the summary judgment stage] of the proceeding, closely scrutinizing the evidence to determine whether the case should be terminated in the defendant's favor, provides a buffer against possible First Amendment interferences.
Id. at 1130 (quoting Guam Federation of Teachers, Local 1581, A.F.T. v. Ysrael, 492 F.2d 438, 441 (9th Cir. 1974). See also, N Y Times v. Sullivan, 376 U.S. 254, 285 (1964). We find that reasonable minds could differ on whether the publication of the Dir Statement is a matter of legitimate public concern; therefore, summary judgment is inappropriate.
In addition to asserting an absolute constitutional and fair report privilege to publish the Dir Statement, the Statesman's Motion for Summary Judgment attacks both the claim for invasion of privacy by intrusion and for publication of private facts on the grounds that the statement concerning Uranga were public, not private facts, because they were in a court file. "To establish a claim for public disclosure of private facts or intrusion into solitude or seclusion, the areas intruded upon must be, and be entitled to be, private." Hoskins v. Howard, 132 Idaho 311, 317, 971 P.2d 1135, 1141 (citing O'Neil v. Schuckardt, 112 Idaho 472, 477, 733 P.2d 693, 698 (1986)). Uranga must have a subjective expectation of privacy in the statement, which society is willing to accept as reasonable. Id. The district court's grant of summary judgment does not specifically address this issue, but implicitly found Uranga failed to establish a legitimate expectation of privacy because the Dir Statement was contained in a court file. However, construing the record liberally in favor of Uranga, and drawing all inferences in his favor, we find reasonable people could reach different conclusions from the evidence in determining whether Uranga has a legitimate expectation of privacy in a statement regarding his sexuality contained in a forty-year-old court file. Uranga has also presented evidence establishing genuine issues of disputed material fact on the other elements of a claim for invasion of privacy by intrusion. Therefore, we find the district court erred in granting summary judgment to the Statesman on Uranga's claims for invasion of privacy by publication of private facts, and invasion of privacy by intrusion.
2. Intentional infliction of emotional distress.
The district court dismissed the cause of action for intentional infliction of emotional distress based on its dismissal of Uranga's invasion of privacy claims. The district court relied on Ninth Circuit precedent stating that "[a]n emotional distress claim based on the same facts as an unsuccessful libel claim cannot survive as an independent cause of action." Sworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192-93, n. 2 (9th Cir. 1989) (quoting Leidhold v. L.F.P., Inc., 860 F.2d 890, 893 n. 4 (9th Cir. 1988). It is true that a privileged publication by the press retains its protected status, regardless of the label selected by the plaintiff for his cause of action; however, because the Statesman's claim of constitutional and fair report privilege fail, the claim for emotional distress cannot be dismissed on this basis. Because we find genuine issues of material fact exist regarding Uranga's claim for intentional infliction of emotional distress, summary judgment on this claim was also inappropriate.
IV. CONCLUSION
The district court's grant of summary judgment on Uranga's claims for invasion of privacy by intrusion, invasion of privacy for publication of private facts, and intentional infliction of emotional distress is vacated and the case is remanded for further proceedings consistent with this opinion. We award costs to the appellant.
Justice WALTERS, KIDWELL, EISMANN and Justice Pro Tem BURDICK, CONCUR.