Court Eases Law on Invasion of Privacy by Press

The state Supreme Court, extending new protections to news organizations facing legal action for articles they publish, ruled Thursday that the plaintiff in an invasion of privacy suit must show actual financial harm--and not just embarrassment or loss of reputation.

The justices held unanimously that the U.S. Constitution required the dismissal of a suit brought by television producer Arthur Fellows against the National Enquirer charging that a photograph it published of Fellows and actress Angie Dickinson falsely portrayed him as “the new man in her life.”

In another decision upholding freedom of press, the court ruled unanimously that a libel suit cannot be pursued against a Los Angeles Herald Examiner columnist who wrote an imaginary conversation between two television producers as a way of criticizing their show.

The court, in upholding the National Enquirer, rejected what might have become a potent legal weapon for people claiming they were victimized by false publications.

Under California law, when an article is not libelous on its face but is defamatory by reference to additional facts, plaintiffs must show that they have suffered a loss in their business or occupation in order to collect damages. The law is aimed at protecting news organizations when they publish an article or photograph without knowledge that it would harm someone’s reputation.

The court, in an opinion by Justice Allen E. Broussard, ruled for the first time that the same requirement of financial damage should be applied to so-called “false-light” invasion of privacy claims.

To allow plaintiffs to circumvent the requirement by alleging invasion of privacy rather than libel would “defeat the legislative purpose of providing a zone of protection for the operation of a free press,” Broussard wrote.

Chief Justice Rose Elizabeth Bird issued a separate opinion calling on the court to consider even more expansive protections for the news media against libel, saying it was time to give “serious thought” to giving the press “absolute, unconditional privilege” to criticize public officials’ conduct without fear of being sued. Official conduct, however, was not involved in the Enquirer case.

“For all its momentary power, the press as an institution is quite fragile,” Bird wrote. “Although those who from time to time have suffered its slings and arrows may dispute that fact, it is a reality.”

The case began when the Enquirer published a photo in 1982 of Fellows and Dickinson with the caption, “Angie Dickinson Dating a Producer.”

An article accompanying the photo said: “Gorgeous Angie Dickinson’s all smiles about the new man in her life--TV producer Arthur Fellows. Angie’s steady-dating Fellows all over TinselTown, and happily posed for photographers with him as they exited the swanky Spago restaurant in Beverly Hills.”

Fellows sued for libel and invasion of privacy, saying the photo had been taken as he and his wife Phyllis Fellows had emerged from the restaurant in a group including Dickinson. He said he had never dated Dickinson and been married to his wife for 18 years.

The libel suit was dismissed but a state Court of Appeal upheld the invasion of privacy claim even though Fellows could not show he was financially harmed by the Enquirer’s publication. The justices reversed the appeals court decision, barring Fellows’ invasion of privacy suit.

In the Herald Examiner case, the court, in an opinion by Bird, held that a critical review by columnist Peter Bunzel in 1983 of a television program about sex education was an expression of opinion--not fact--and was thus protected against a libel suit under the First Amendment.

Bunzel wrote that it was “my impression” that KHJ-TV (Channel 9) producer Walt Baker told writer/producer Phil Reeder, “We’ve got a hot potato here--let’s pour on titillating innuendo and as much bare flesh as we can get away with. Viewers will eat it up!”

Baker brought suit, charging libel. A trial court held that the statement was a protected expression of opinion, but a state appellate court reversed the decision, saying the article went beyond a mere critique and effectively charged Baker with “an intentional presentation of pornography, obscenity and lewdness.”

The state Supreme Court, ordering dismissal of the case, said Bunzel’s use of an imaginary conversation was a means of criticizing the program, not alleging a fact. “Clearly,” Bird wrote, “the conversation was being used in a metaphorical, exaggerated or even fantastic sense.”