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Jenkins v. Dell Publishing Co.

decided: January 13, 1958.


Author: Hastie

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

This is an appeal from an order granting the defendant summary judgment in a suit for tortious invasion of privacy. The plaintiffs are the widow and children of David Jenkins who had been kicked to death in September, 1953 by the leader of a gang of teen-aged Pittsburgh youths. Defendant is the publisher of the monthly magazine, "Front Page Detective". In the January 1954 issue of this magazine there appeared on a single page under the title "Heartbreak House" an accurate 150 word account of this homicide naming the persons concerned, including the plaintiffs. The exact text of this publication is set out in the margin.*fn1 This brief story was illustrated with pictures, among them a group photograph of the plaintiffs identified as the family of the victim.

The gravamen of the claim which plaintiffs have based on this publication is stated in their brief amended complaint as follows:

"4. The defendant is sued for damaging and injuring the plaintiffs by invading the privacy of the plaintiffs by publishing or causing to be published and circulated a picture of the plaintiffs without their permission, and without privilege as hereinafter set forth.

"5. The defendant, Dell Publishing Company, Incorporated, did willfully, wantonly, recklessly, maliciously, and with complete disregard for the interests and rights of the plaintiffs, reproduce, publish and circulate or caused to be reproduced, published and circulated in the state of Pennsylvania, and the United States a picture of the plaintiffs, under the title, 'Heartbreak House', in the January, 1954, edition of 'Front Page Detective' on page 57."

On motion for summary judgment the court considered this complaint and a number of depositions, exhibits, admissions, and answers to interrogatories which established several important facts, in addition to those already stated above. The group photograph of which plaintiffs complained had been taken by a newspaper photographer shortly after the homicide, with the consent of the plaintiffs and pursuant to their understanding that the picture was to be used for newspaper publicity in connection with the felonious killing of the head of their family. Thereafter, without the knowledge or consent of the plaintiffs, the newspaper which took and published the picture sold a copy of it to World Wide Photos, Inc., which in turn sold it to the defendant, which used it to illustrate the above described story in Front Page Detective some three months after the homicide. An entire copy of this January issue of Front Page Detective was made a part of a deposition which was before the court on the motion for summary judgment.

All concerned have agreed that the allegedly injurious publication occurred in the state of Pennsylvania where the plaintiffs lived and were known and Front Page Detective was circulated. Therefore, the question whether defendant is entitled to summary judgment has properly been viewed as depending upon the law of privacy as it exists and is developing as part of the tort law of Pennsylvania.

As a legally protected interest of personality, privacy is new in the common law. Concepts and rules for the systematic development and protection of this interest are in the making and not fully developed. In Pennsylvania, as recently as 1954, the highest court of the state would not commit itself beyond "[assuming,] without deciding, that such a right does exist in Pennsylvania".*fn2 Nevertheless, we think it adequately established that there is a protected area of privacy under Pennsylvania law,*fn3 imprecisely defined though it is in the decisions of the Pennsylvania courts.

Moreover, we think the evolving law of privacy, in Pennsylvania as in other states, exhibits a basic conceptual framework which makes for and aids in an orderly and systematic development of this new legal field. As we read them, the decisions of judges and the theoretical discussions of scholars about privacy show concern with two types of harm, one of which is more likely to justify judicial intervention than the other. The first and, in terms of the dictionary meaning of privacy, the most obvious matter of legal concern is some measure of protection for the individual against the embarrassment, humiliation or other injury which may result from public disclosure concerning his personality or experiences, truthful and factual though that disclosure may be. But in this situation, the interest of the public in the free dissemination of the truth and unimpeded access to news is so broad, so difficult to define and so dangerous to circumscribe that courts have been reluctant to make such factually accurate public disclosures tortious, except where the lack of any meritorious public interest in the disclosure is very clear and its offensiveness to ordinary sensibilities is equally clear.*fn4

But there is a second type of situation where a publication is harmful and objectionable, not because of what it discloses about the individual, but because of the way it associates his personality with something else. The unauthorized use of one's story or picture in commercial advertising exemplifies this branch of the law,*fn5 although there also may be objectionable non-commercial uses of one's likeness or story to promote something else.*fn6

The present case belongs in the first and not in the second of the above described general categories. The plaintiffs' tragedy was published because the publisher thought that the public would be interested in reading about it, and not to advertise, promote or publicize anything else.

This analysis immediately discloses the fallacy of one of the principal arguments made in support of this appeal. In argument this case has been analogized to those in which a "commercial" use or exploitation of an individual's picture or story has been viewed as a violation of privacy. But we already have pointed out that "commercial" uses are those in which an individual's picture or story has been associated with something else in commercial advertising. Experience has shown that a person of normal sensitivity is likely to find this type of commercialization of his personality very objectionable. At the same time no social interest is jeopardized in curbing such unauthorized advertising practices.

Quite different are the cases like this one where a story is recounted solely for the reader interest it may evoke. True, such publication is "commercial" in the sense that Front Page Detective is a magazine published for profit. But this in no way distinguishes the magazine from almost all other newspapers and magazines. Thus, the commercial character of newspapers and magazines is not a significant circumstance in this or any other case in our first category.*fn7 The concern of the law that restrictions on public disclosures of the ...

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