dissenting:
I respectfully dissent from the majority conclusion that the complaint before us states a cause of action for invasion of privacy and intentional infliction of emotional distress based upon the January 1, 1993, edition of the Chicago Tribune. While I agree that the January 3, 1993, edition does not state a cause of action, I disagree with the reasoning of the majority in reaching that conclusion. I would affirm the trial court in all respects.
Three fundamental problems surface with the majority approach. To each point in turn.
First, count III of the complaint, directed at the Tribune for invasion of privacy, alleges five separate acts: entry of the hospital room without the consent of Green; preventing Green from entering the same room; photographing her son; eavesdropping on Green’s words to her dead son; and publishing these words and a photograph of her dead son. The first four allegations have nothing to do with the tort of public disclosure of private facts. If they state a cause of action, it is under section 652B of the Restatement: an unreasonable intrusion upon the seclusion of another. Although plaintiff’s complaint describes her cause of action as one of publication of private facts alone, it is the allegations that define the cause of action and not the name or title that may be used. Barnes v. Southern Ry. Co., 116 Ill. 2d 236, 244, 507 N.E.2d 494 (1987).
The tort of intrusion upon the plaintiff’s seclusion and the tort of publication of private facts are treated as a single cause of action in the complaint and by the majority. They are separate torts, as recognized by Dean Prosser, who first proposed them (W. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960)), the Restatement of Torts, which adopts Prosser’s categories (Restatement (Second) of Torts § 652A through E (1977)), and almost all state and federal courts that track the Restatement in a privacy case.
This is more than a quibble over a distinction that does not amount to a significant difference. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1490, 232 Cal. Rptr. 668, 683 (1986) (cited by the majority, where the torts are clearly distinguished).
Intrusion does not implicate the first amendment. Publication by a media defendant of facts alleged to be private triggers the first amendment debate about the nature of the facts published, whether the plaintiff is an involuntary public figure, and whether the facts are of legitimate public concern. When the elements of the torts are mingled as they are here, we are led down an analytical path that ignores the distinction between the way information is gathered and its subsequent publication. If this photograph had been taken on the street where Calvin Green was slain, and his mother’s tragic words recorded as she stood over him, I doubt I would be writing this dissent. That Calvin and his mother were tragic involuntary public figures in a story of grim but legitimate public interest is self-evident. The alleged intrusion cannot change their status or diminish the newsworthiness of the story.
Illinois appellate authority, while agreeing on the elements of the intrusion tort, is split on whether the cause of action is recognized under Illinois law. The First District of the Illinois Appellate Court has held that Illinois courts do not recognize a cause of action for intrusion upon the seclusion of another. Morton v. Hartigan, 145 Ill. App. 3d 417, 427, 495 N.E.2d 1159 (1986). The third district, in Melvin v. Burling, 141 Ill. App. 3d 786, 490 N.E.2d 1011 (1986), held otherwise. The one supreme court case to review the appellate decisions, Lovgren v. Citizens First National Bank, 126 Ill. 2d 411, 534 N.E.2d 987 (1989), chose not to resolve the issue.
The reluctance of our supreme court to recognize a cause of action for intrusion may reflect in part an awareness that elements of the tort overlap established common law actions (trespass, for example) and several recent criminal statutes inspired by the concern for privacy. Among the latter: communications consumer privacy act; obscene phone call act; telecommunications line tapping act; telephone line interference act; peephole installation act; eavesdropping; residential picketing. An action for intrusion may be a useful civil complement to these criminal statutes, but given the cautionary language of the court in Lovgren, recognition of the tort should await guidelines from the supreme court, particularly in first amendment cases.
For the sake of argument, I will assume, with the majority, that a cause of action for intrusion exists in Illinois. We must then decide whether it was properly pied against the Tribune.
That the privacy right is personal to the plaintiff and cannot be borrowed from another, even a relative, and does not survive death is recognized and well surveyed by the California Appellate Court in Miller. See Miller, 187 Cal. App. 3d at 1485, 232 Cal. Rptr. at 680; see also Flynn v. Higham, 149 Cal. App. 3d 677, 683, 197 Cal. Rptr. 145, 149 (1983); Rozhon v. Triangle Productions, 230 F.2d 359 (7th Cir. 1956). The majority here appears to adopt a theory, without citation to authority, that a bereaved relative in a private hospital room enjoys the same privacy right as the patient, and that the right extends to whatever words might be uttered without regard to their content and to a photograph of the dead patient. The complaint does not allege the Tribune was in the room without the consent of the hospital. It assumes a privacy right in Green, even though the Tribune personnel were allowed into the room before her. Whether Green has a cause of action against the hospital is not an issue in this appeal.
The intrusion analysis includes weighing the "context,” "circumstances,” and "setting”—"the private affairs” in Prosser’s words (48 Cal. L. Rev. at 384)—intruded upon to decide whether the intrusion is "offensive” as a matter of law. On questions of law and fact in privacy cases the following should be noted from cases the majority cites: "The determination of ['private matter’] is a matter for the court to decide ***.” Y.G. v. Jewish Hospital, 795 S.W.2d 488, 499 (Mo. App. 1990), citing Barber v. Time, Inc., 159 S.W.2d 291, 295 (Mo. 1942). "[T]here is a preliminary determination of 'offensiveness’ which must be made by the court in discerning the existence of a cause of action for intrusion.” Miller, 187 Cal. App. 3d at 1483, 232 Cal. Rptr. at 678.
When the intrusion is into a plaintiff’s home, the cases surveyed in Miller and Y.G. at least imply that intrusion alone may state a cause of action, no matter how benign the activity observed. But when, as here, the intrusion occurs in a context, setting, and under circumstances where a home is not involved, the nature of the "private affairs” revealed is an issue. "Private affairs” as a component of the tort of intrusion is invariably equated with "private facts.” See Miller, 187 Cal. App. 3d 1463, 232 Cal. Rptr. 668; Y.G., 795 S.W.2d 488. Almost all the cases cited in Miller and Y.G. involve an intrusion followed by publicity and publication, where "private affairs” and "private facts” are synonymous.
Outside the home, the nature of what is observed or overheard is an important element in every "private fact” case that addresses the issue. See Lovgren, 126 Ill. 2d 411, 534 N.E.2d 987; Dwyer v. American Express Co., 273 Ill. App. 3d 742, 652 N.E.2d 1351 (1995); Miller v. Motorola, Inc., 202 Ill. App. 3d 976, 560 N.E.2d 900 (1990); Melvin v. Burling, 141 Ill. App. 3d 786, 490 N.E.2d 1011 (1986); see also Y.G., 795 S.W.2d 488. The cases that label a fact "private” and the mere awareness of it by another "offensive” involve "peculiarly private” facts: a person’s financial, medical, or sexual life, or a peculiarly private fact of an intimate personal nature where noncorisensual revelation causes embarrassment to the person. See generally 62A Am. Jur. 2d Privacy § 155, at 764 (1990).
So we must decide whether, as a matter of law, the photograph and the words in this case were "offensive.” The photograph of a dead person, even one undergoing treatment, does not immediately suggest offensiveness, nor does plaintiff plead characteristics to suggest offensiveness, such as a photograph of an autopsy, gun wounds, lacerations, or mutilations.
The argument that overhearing words of grief are offensive, as a matter of law, in the context of "peculiarly private” or "embarrassing,” is even less persuasive. If anything, the words here place Green in a sympathetic light—a light I believe—in which all reasonable persons would look upon her with compassion and understanding. I have not found a single reported case where the private words of a plaintiff that cast her in a favorable light have been held actionable based upon the circumstances under which they were uttered. The majority opinion stands alone.
Since I would find that the tort of intrusion has not been adequately pied, even if recognized in Illinois, and that "private affairs” and "private facts,” as defined by case law, are not implicated, I would not reach the issue of publication. But, assuming with the majority, there has been an intrusion and the facts gleaned from it are "peculiarly private” and "embarrassing,” this cause of action collides with the first amendment and raises my second problem with the majority opinion.
The tort of giving publicity to the private life of a person may occur when the matter publicized "would be highly offensive to a reasonable person,” but only when the matter publicized "is not of legitimate concern to the public.” Restatement (Second) of Torts § 652D, at 383 (1977). The jury is not called upon to decide what is "highly offensive” until a court has determined that the matter is first, private, and second, offensive.
The first amendment guarantees of free speech and free press assure the right of the press to publish news. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975). A media defendant is constitutionally permitted to publicize facts about an individual’s private life when those facts are newsworthy.
The majority quotes the Restatement at length, yet omits an important paragraph of the comments to section 652D—matters regarded as "news.”
"Authorized publicity includes publications concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal.” 3 Restatement (Second) of Torts § 652D, Comment g, at 390-91 (1977).
The majority finds that plaintiff states a cause of action based on the reasoning that "a jury could find” the article "did not need” the photo of Calvin and plaintiff’s statements to him. That may well be, but it is not for a jury to decide how a news story should be edited. To question whether the newspaper should have omitted certain details from a story of legitimate public concern amounts to editorial second-guessing rather than legal analysis. Where the general content of an article is newsworthy, editors must be allowed a measure of discretion to determine how the article will be written and what details will be included. "The editorial judgment of what is 'newsworthy’ is not so readily submitted to the ad hoc review of a jury ***.” Anderson v. Fisher Broadcasting Co., 300 Or. 452, 455, 712 P.2d 803, 809 (1986).
Here, the article about deaths from gang violence and the photograph, charts, and statistics accompanying the article are matters of legitimate public concern. The statements by plaintiff to her son and his photo are closely related to the subject matter of the news story, which documented the fact and effect of gang violence on the offenders and the victims. The subject is of public interest. In the sense of serving an appropriate news function, the quotation and photograph contribute constructively to the impact of the article. They give a personalized frame of reference, allowing the reader to relate, perceive, and understand that the class of victims is not limited to gang members. They verify the article’s message that victims include the community, friends, and family. They show Calvin Green was not only the 934th person to die from gang violence in 1992—he was a young man with a loving parent who is also a victim of gang violence. The photograph and the statements heighten the impact and credibility of the article and prevent an impression that gangs are a remote or hypothetical problem.
To quote from the Supreme Court of Massachusetts:
"Doubtless many persons at such a time would be distressed or annoyed by a’publication of the sort here involved. It is a time above all others when they would prefer to be spared the anguish of wide or sensational publicity. But if the right asserted here were sustained, it would be difficult to fix its boundaries. *** Many things which are distressing or may be lacking in propriety or good taste are not actionable.” Kelley v. Post Publishing Co., 327 Mass. 275, 277, 98 N.E.2d 286, 287 (1951).
The right of privacy must give way when balanced against the publication of matters of public interest to insure the "uninhibited, robust and wide-open” discussion of legitimate public issues. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 701, 84 S. Ct. 710, 721 (1964).
The third problem with the majority opinion: the facts pied in the intentional infliction of emotional distress count are well below the threshold established in Illinois Supreme Court decisions. In Public Finance Corp. v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765 (1976), the supreme court explained: " 'Liability [for the tort] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.’ ” Public Finance, 66 Ill. 2d at 90, quoting Restatement (Second) of Torts § 46, Comment d (1965). Public Finance was decided on the pleadings, with the issue of "severe” a question of law. The court continued: "The emotional distress must be severe. Although fright, horror, grief *** may fall within the ambit of the term 'emotional distress,’ these mental conditions alone are not actionable. 'The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.’ ” (Emphasis in original.) Public Finance, 66 Ill. 2d at 90, quoting Restatement (Second) of Torts § 46, Comment j (1965). The actor must either intend that his conduct inflict severe emotional distress, or know there is a high probability the conduct will cause severe emotional distress, and the conduct must cause severe emotional distress. The intensity and duration of the distress are elements to be considered in determining its severity. McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806 (1988).
This case cannot fairly be compared to Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 232 Cal. Rptr. 668, as the majority suggests. The Tribune never invaded plaintiffs home and never used her words or the deceased’s photograph to publicize its coverage of the story.
The facts alleged in this complaint measured by the words chosen by the supreme court in Public Finance to set the standard for the tort, do not amount to conduct that exceeds "all possible bounds” of decency. The distress the plaintiff suffered as a result of the conduct is not such that "no reasonable person could be expected to endure it.” Cases where courts have allowed recovery for severe emotional distress tend to involve abusive language, threats, and extended harassment by the defendant. Public Finance, 66 Ill. 2d at 92. " '[Liability usually has rested on a prolonged course of hounding by a variety of extreme methods.’ ” Public Finance, 66 Ill. 2d at 92, quoting W. Prosser, Torts 57 (4th ed. 1971).
There are, no doubt, cases in the pipeline where the phenomena of "info-mercials,” "info-entertainment,” "docu-dramas” and "reenactments” blur the differences between legitimate news and pulp fiction. The shield of the first amendment may develop cracks as courts respond to this trend and the insensitive aggressiveness of legitimate news gatherers who must compete with the purveyors of soft core "information” to supply market demands. This case is not one of them.
I respectfully dissent.