The opinion of the court was delivered by: VAN DUSEN
Defendant United Artists Corp. has moved for denial of plaintiff's application of a preliminary injunction at the close of the plaintiff's evidence presented at a hearing on the above Motion held on the afternoon of October 16, 1963, pursuant to the Order of October 14, 1963. The Complaint in Equity alleges, and it is fair to infer for purposes of this Motion, that plaintiff has established that defendant United Artists Corp. has, in violation of plaintiff's right of privacy, produced a film for exhibition on television re-enacting the February 1962 crimes of aggravated robbery and burglary, with intent to commit a felony for which plaintiff was convicted on April 18, 1962, and for which he is now incarcerated in a Pennsylvania State Correctional Institution. This film is scheduled to be shown over Channel 6 (WFIL Television Studio), which is one of the three major television channels in Philadelphia, at 10:30 P.M. this evening.
Plaintiff called witnesses (whom he contends are representative members of the public) who testified that they did not feel it was fair, correct or proper to a criminal to rehash the facts of a crime 20 months after it occurred. Most of these witnesses did not know of the 1962 crime in which plaintiff was involved. The hearing judge ruled that whether seeing the proposed telecast would prejudice such witnesses in any view which they might have if plaintiff applied for parole or pardon from his present sentence was irrelevant. Parole and pardon are privileges (not matters of constitutional right) which are peculiarly subject to the public policy of the state, whose courts should be the ones to determine the extent to which information programs should be restricted because of possible interference with the state public policy on these privileges. Cf. Stefanelli v. Minard, 342 U.S. 117, 120-2, 72 S. Ct. 118, 96 L. Ed. 138 (1951). Plaintiff has a companion case against WFIL-Television Studio pending on appeal in the State Court.
For at least these two reasons, plaintiff has not sustained the burden imposed upon an applicant for a preliminary injunction to show that he is clearly entitled to relief [see Warner Brothers Pictures, Inc. v. Gittone, 110 F.2d 292 (3rd Cir. 1940); Joseph Bancroft and Sons Co. v. Shelley Knitting Mills Co., 268 F.2d 569 (3rd Cir. 1959); cf. Madison Square Garden Corp. v. Braddock, 90 F.2d 924, 927 (3rd Cir. 1937)]:
Between 1942 and 1948, plaintiff, as a juvenile, was twice convicted of burglary and larceny and once convicted of larceny and receiving stolen goods. In 1952, he was committed to prison for violation of parole. In 1954, he was given a one-to-three-year term for larceny of auto and in 1956 he was convicted of burglary, larceny, and receiving stolen goods, thereby apparently also violating his parole under the 1954 conviction. See stipulation of counsel and P-5. In February 1962, he committed the two separate felonies alleged in the Complaint for which he was convicted in April 1962. Unfortunately, he elected to rob and burglarize on this occasion the home of an important official of the Philadelphia Fire Department and to kidnap his daughter, thereby further injecting himself into the public eye. Under such circumstances, plaintiff's life has ceased to be private. Warren and Brandeis, in their leading article on "The Right to Privacy," 4 Harv. L. Rev. 193, at 214-5, stated:
". . . the general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.. . ." (Emphasis supplied.)
Similarly, comment C to § 867 of the Restatement of Torts states:
". . . one who unwillingly comes into the public eye because of his own fault, as in the case of a criminal, is subject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one unjustly charged with crime or the subject of a striking catastrophe. Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention ; until they have reverted to the lawful and unexciting life lead by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims." (Emphasis supplied.)
See, also, Aquino v. Bulletin Co., 190 Pa. Super. 528, 533, 154 A.2d 422 (1959); Bernstein v. National Broadcasting Company, 129 F. Supp. 817, 827-8 (D. D.C. 1955); cf. Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954).
Plaintiff's contention that the 18 months which have elapsed since his latest conviction make the crime no longer news must be rejected in the light of the record in this case
and the following language from Bernstein v. National Broadcasting Company, supra, at 835:
"This court holds, as a matter of law, that a criminal proceeding widely publicized for a period of at least eight years and containing elements of decided popular appeal does not lose its general public interest in a period of four years or even twelve ...