concurring.
While I concur with the majority as to the result, I would offer a different analysis. I would hold that a fact question exists as to whether the details of the rape and information identifying Doe were of legitimate public concern.
In some eases the issue of “newsworthiness” is a question of law for the court but sometimes a question of fact for the jury. Gilbert v. Medical Economics Co., 665 F.2d 305, 309 (10th Cir.1981). Liability for public disclosure of private facts is precluded if “objective and reasonable minds [could not] differ in finding the article in question to be privileged in its entirety.” See id. Therefore, if objective and reasonable minds could not differ on the issue, it is decided as a matter of law.
To determine whether a fact question exists in this case, I think we first need to ascertain what “private facts” Doe is alleging were improperly disclosed. Doe contends that the fact a rape occurred is a matter of public concern, but that the details of the rape and of her identity were not. The Fifth Circuit addressed this very issue in Ross v. Midwest Communications, Inc., 870 F.2d 271 (5th Cir.1989).1
In Ross a television station aired a documentary questioning the guilt of a man convicted of rape. The program disclosed the details of several rapes, including Ross’s. Id. Ross was identified as “Marla,” her true first name, and a photograph of her house, at the time of the rape, was shown. Id. at 272.
The station said it identified Ross, her home, and the details of the rape because Ross could not identify a rape suspect named Fossum in a line-up after she was raped. Id. at 271. Later, Fossum was convicted of two other rapes. Id. The documentary sought to show how details from the Ross rape and the rape Fossum was convicted of were identical, thereby suggesting someone else committed both rapes. Id. at 271-72.
The court found the information was newsworthy because the details of the two rapes were so similar and the details of the Ross rape were relevant in showing Fossum may have been wrongly convicted. Id. at 273.
The court further pointed out that because a person’s identity is not itself a private embarrassing fact, the issue is technically whether the victim’s identity connected to the rape details is a matter of legitimate concern. Id., at 274. While noting this issue to be one of first impression in Texas, the court found Ross’s identity lent needed credibility and persuasive force to the story and to show the station’s knowledge of the details of her attack. Id. For these reasons, the court found Ross’s identity in connection with those details to also be of legitimate public concern. Id. at 275.
Unlike the facts in Ross, the details of Doe’s rape and the identifying details were not “uniquely crucial” to the story; but rather, the appellees’ claimed public concern goes to a “general sociological issue” — that affluent people are also victims of crime. Therefore, I would hold that objective and reasonable minds could differ in finding the details of the rape and information identifying Doe were of legitimate public concern.
For the above reasons, I concur in the opinion of the majority.
. Although I realize Ross is not binding on this court, it does apply Texas law and I find its reasoning and language helpful in determining whether reasonable minds could differ in finding the article to be privileged in its entirety.