Hart Could Lose Privacy-Invasion Suit

"The press is overstepping in every direction the obvious bounds of propriety and of decency . . . . To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers."

No, Gary Hart did not pen these words, though he may now share the views expressed. They were the observations of Louis D. Brandeis and his law partner, Samuel D. Warren, and were published in the Harvard Law Review in 1890, long before Brandeis was appointed to the U.S. Supreme Court.

New Legal Concept

That article led to the development of a new legal concept, the right of privacy, an area of law that may be of more than nominal interest to the former Colorado senator.

Can Gary Hart win an invasion of privacy lawsuit against the Miami Herald for disclosing his weekend activities with part-time actress Donna Rice?

I thought I'd save Sen. Hart some legal fees (he has trouble enough with his campaign debts) and offer him my legal opinion free of charge. The simple answer is no, I think he'd lose a privacy suit.

Hart could sue under a legal theory called the "public disclosure of private facts." At a minimum, he must show that the Miami Herald publicized "private facts," that the disclosure was "highly offensive to a reasonable person" and that the information was not of "legitimate concern" to the public--not newsworthy.

However, the courts have made privacy suits very difficult to win. And understandably so, because a privacy suit punishes publication of the truth.

You see, falsity has nothing to do with this sort of lawsuit. Unlike defamation, where a person must prove falsity in order to recover damages, truth is not a defense to a privacy claim. In fact, it is the very truth of the private facts that usually causes the damage.

There have been very few decisions in which persons have won privacy suits against the news media. Plenty of people have sued because they found what was written or broadcast about them was annoying or embarrassing, but few have won much money as a result of their legal efforts.

In fact, in one of the few cases in which a jury awarded a large amount of money, $775,000 in damages, an appellate court later overturned the verdict because of erroneous jury instructions. In that case, a college student body president sued the Oakland Tribune for revealing she was once a male and had undergone sex-change surgery.

I wouldn't give Gary Hart a much better chance of winning a privacy suit than the Pittsburg Steeler fan who was pictured in Sports Illustrated with his fly open. His case was dismissed. He was part of a group of fans who had urged the photographer to take pictures. In Gary Hart's case, the senator urged the press to check out the rumors of his "womanizing."

Journalists Disagree

Although reporters and editors may disagree about the propriety of reporting on Hart's activities, and recent polls suggest that the public has mixed feelings on the subject, it is doubtful that a judge or jury would find the disclosure was "highly offensive" and, I believe, extremely unlikely that a court would rule that the information was not newsworthy.

That advice is based, in part, on a privacy case brought by the man who saved President Ford's life in 1976, by jostling the arm of would-be assassin Sara Jane Moore. He sued various newspapers for disclosing his homosexuality, but a California Court of Appeal ruled that his sexual orientation was not private because it was already known to hundreds of people. Anyway, the court said, the disclosure was newsworthy because it was prompted by "legitimate political considerations."

I'm afraid Gary Hart would face the same judicial reaction. And lose.

Attorney Jeffrey S. Klein, The Times' senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.

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