United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 16, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50269
JOHN PATRICK LOWE,
Bankruptcy Trustee,
Plaint iff-Appellant ,
versus
HEARST COMMUNICATIONS, INC.;
HEARST NEWSPAPERS PARTNERSHIP, L.P.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
John Patrick Lowe, as Trustee for the bankruptcy estate of Ted and Mary Roberts, appeals
the district court’s Rule 12(b)(6) dismissal of his suit against Hearst Communications and Hearst
Newspapers Partnership (collectively “Hearst”). Lowe seeks damages stemming from invasion of
privacy based on public disclosure of private facts. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The San Antonio Express News, a Hearst subsidiary, published an article describing a
blackmail scheme carried out by two married attorneys, Ted and Mary Roberts. The article alleged
that Mary had engaged in a series of extramarital affairs and that Ted had then extorted thousands
of dollars from Mary’s lovers by sending them draft Rule 202 petitions1 (the “202 documents”)
naming them as defendants. The 202 documents proposed to seek information on whether Ted had
legal grounds for a variety of claims, including divorce and obscenity. These documents also
mentioned Ted’s intent to contact the men’s wives and employers as witnesses. Under threat of
litigation, as many as five men entered into settlement agreements with Ted, who received between
$75,000 and $155,000 in total as a result. The article also contained the perspectives of five legal
scholars as to the merits of the causes of action raised by Ted against Mary and her lovers and the
ethics of Ted’s behavior. Additionally, the story revealed details of the Roberts’ domestic life,
including their purchase of a $655,000 house in a San Antonio suburb, the fact that they had an eight-
year-old son, and the fact that Mary was the daughter of a Lutheran minister. Ted Roberts has since
been tried and convicted on charges of theft related to the allegations in the article.
The 202 documents were discovered by Ted’s former law partner, Robert West, and
introduced in a separate Texas state court dispute between the two of them. During that litigation,
Ted and Mary alleged that West copied and removed the 202 documents from their law offices. The
state trial court issued a protective order,2 in the form of a temporary injunction, which sealed the 202
1
Texas Rule of Civil Procedure 202 permits a court to authorize pre-litigation discovery to
explore whether grounds for a legal claim exist.
2
Texas Rule of Civil Procedure 192.6 allows a court to enter a protective order sealing “the
results of discovery” in order to “protect the movant from undue burden, unnecessary expense,
2
documents and barred the parties from accessing them. Ted and Mary then filed a motion to
permanently seal the 202 documents and posted a public notice of their intent, as required by Texas
Rule of Civil Procedure 76a.3 The Express-News intervened to oppose the sealing. The trial court
determined that the 202 documents had not been properly sealed and ordered the entire record
unsealed.
Ted and Mary appealed, and the Texas Court of Appeals reversed. The court held that the
202 documents were not “court records” as defined by Rule 76a and that the first protective order
issued by the trial court was therefore valid. The court modified the temporary injunction to prevent
release of the information in the 202 documents to the public, as well as to the parties and their
agents. Ultimately, therefore, Express-News was denied access to the 202 documents by the Texas
Court of Appeals.
At this point, the parties’ accounts of the facts diverge. Express-News maintains that it
obtained the 202 documents from another source and published the article. Ted and Mary argue that
Express-News violated the Texas state court order and used the litigation documents as the primary
source for the article.
At some point after the publication of the article, Ted and Mary declared bankruptcy. The
bankruptcy trustee, John Patrick Lowe, then brought this suit in district court on behalf of the estate
harassment, annoyance, or invasion of personal, constitutional, or property rights.”
3
All court records are presumptively available to the public and may be sealed only pursuant to
the conditions of Texas Rule of Civil Procedure 76a. However, not all documents are court
records. “Before a trial court decides whether a Rule 76a hearing and order are necessary, it must
determine whether the documents in question are ‘court records.’” Roberts v. West, 123 S.W.3d
436, 440 (Tex. App. 2003). A court record may only be sealed after a hearing held in accordance
with the notice procedure specified in Rule 76a. See Tex. R. Civ. Pro. 192.6.
3
seeking damages for public disclosure of private facts and intentional infliction of emotional distress.
Lowe invoked diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). On January 26, 2006, the
district court dismissed both claims with prejudice under Rule 12(b)(6). Lowe appeals the dismissal
of only his claim for public disclosure of private facts.
II. DISCUSSION
A. Standard of Review
We review the district court’s dismissal de novo. Cinel v. Connick, 15 F.3d 1338, 1341 (5th
Cir. 1994). Because this case was dismissed on a Rule 12(b)(6) motion, we accept the pleadings of
Lowe as true, id., including his allegation that Hearst violated the state court order to obtain the 202
documents.
In this diversity case, Texas law controls the substantive law applied to Lowe’s invasion of
privacy claim. Ross v. Midwest Commc’ns, Inc., 870 F.2d 271, 273 (5th Cir. 1989). To establish a
claim for the tort of invasion of privacy based on the public disclosure of private facts, the plaintiff
must show that (1) publicity was given to matters concerning his private life; (2) the publication of
which would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter
publicized was not of legitimate public concern. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-
74 (Tex. 1995). The test for “newsworthiness” is the same under Texas state law and federal
constitutional law. Ross, 870 F.2d at 273. The district court determined that Ted and Mary had a
legally cognizable expectation of privacy in the published facts but found that the information in the
article was of legitimate public concern. The court concluded, therefore, that Lowe could not make
out a prima facie case of invasion of privacy.
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This court decides as a matter of law whether a publicized matter is of legitimate public
concern. Cinel, 15 F.3d at 1345-46. The test for determining newsworthiness is to be construed
broadly, extending beyond “the dissemination of news either in the sense of current events or
commentary upon public affairs” to include “information concerning interesting phases of human
activity and embrac[ing] all issues about which information is appropriate so that individuals may
cope with the exigencies of their period.” Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir.
1980).
B. Prima Facie Claim of Invasion of Privacy
“The commission of crime, prosecutions resulting from it, and judicial proceedings arising
from the prosecutions . . . are without question events of legitimate concern to the public and
consequently fall within the responsibility of the press to report.” Cox Broad. Corp. v. Cohn, 420
U.S. 469, 492 (1975). In Cinel, this court held that there is a legitimate public interest in facts
tending to support an allegation of criminal activity, even if the prosecutor does not intend to pursue
a conviction. 15 F.3d at 1345-46 (finding a legitimate public interest in facts indicating that a priest,
who had been granted immunity, possessed child pornography). While at the time the article was
published the Roberts had not yet been charged with any criminal activity, the article did mention the
district attorney’s response, which at the time was seeming disinterest. Maro Robbins & Joseph S.
Stroud, Sex, Lawyers, Secrets at Heart of Sealed Legal Case, SAN ANTONIO EXPRESS-NEWS, June
13, 2004, at A1. Given the broad interpretation of newsworthiness, particularly with regards to
alleged criminal activity, an article describing the use of the legal system by prominent local lawyers
in a way that could be described as blackmail is a matter of public concern. In this case, the
newsworthiness of the story was enhanced by a discussion regarding the legal ethics of Ted’s actions,
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as well as by commentary from the prosecutor’s office about its proposed response.
Lowe also argues that while the details of the alleged blackmail scheme may be matters of
public concern, other details within the article, such as the Roberts’ recent purchase of a house and
family details were not matters of public concern and could serve as a basis for liability. The Texas
Supreme Court holds that, “While the general subject matter of a publication may be a matter of
legitimate public concern, it does not necessarily follow that all information given in the account is
newsworthy.” Star-Telegram, Inc., 915 S.W.2d at 474. Nevertheless, excessive judicial intervention
“foreseeably could cause critical information of legitimate public interest to be withheld until it
becomes untimely and worthless to an informed public.” Id. at 474-75; see also Cinel, 15 F.3d at
1346 (“[W]e are not prepared to make editorial decisions for the media regarding information directly
related to matters of public concern.”); Ross, 870 F.2d at 275 (“Exuberant judicial blue-penciling
after-the-fact would blunt the quills of even the most honorable journalists.”). This Circuit has
declined to get involved in deciding the newsworthiness of specific details in a newsworthy story
where the details were “substantially related” to the story. Cinel, 15 F.3d at 1346 (rejecting a
challenge even where the media’s use of certain material “reflected the media’s insensitivity” and
“embarrassed” the subject of the article). This court has also acknowledged the importance of
personal details that “[c]ommunicat[e] that this [person] was a real person with roots in the
community.” Ross, 870 F.2d at 274. We similarly decline to circumscribe the paper’s coverage in
this case by imposing judicial rules on what is relevant and appropriate in a story that is based on very
personal, which became newsworthy by their connection to the alleged crimes.
Lowe contends that, regardless of the newsworthiness of the article, the district court erred
in failing to address his allegation that Hearst violated the state court’s protective order by using the
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202 documents as the source for its article. However, as the district court noted, under both Texas
and Fifth Circuit precedent, the court may only consider the illegality of Hearst’s conduct once Lowe
has established a prima facie case. See Star Telegram, Inc., 915 S.W.2d at 475 (“Because Star-
Telegram’s summary judgment evidence negated an essential element of Doe’s invasion of privacy
cause of action, we do not reach . . . whether truthful information was lawfully obtained.” (quotation
omitted)); see also Ross, 870 F.2d at 275. Even accepting Lowe’s allegation that Hearst obtained
the information in the article in violation of the court order, there can be no liability for invasion of
privacy if the information is a matter of public concern. Lowe is free to seek a contempt charge, see
Tex. R. Civ. Pro. 692 (violations of court injunctions punishable by contempt), or allege a cause of
action that addresses the source of the information, see Ross, 870 F.2d at 275 (“[T]he discussion
leaves open the state’s power to protect . . . privacy by preserving the confidentiality of the state’s
records, and punishing any who steal the information. Liability for the wrongful taking could
encompass damages resulting from the foreseeable publication of the information.”).
C. Res Judicata
Lowe also argues that the state courts determined, in sealing the 202 documents and holding
that they were not court records, that the documents related to the Roberts’ “personal, constitutional,
or property rights,” Tex. Rules of Civ. Pro. 192.6(b), and that they were not relevant to “general
public health or safety, or the administration of public office, or the operation of government,” Tex.
Rules of Civ. Pro. 76a(2)(c). Further, Lowe contends that these determinations encompass the
determination that the information in the article published by Hearst is not a matter of public concern.
Therefore, in Lowe’s view, under the doctrines of res judicata, Rooker-Feldman, or Erie, the state
court determinations are entitled to deference on the issue of public concern and the district court was
7
not entitled to reach an independent, differing conclusion on this issue.
We disagree. The tests that the Texas state courts use to evaluate whether discovery
documents should be protected or sealed is quite different from the analysis of whether the documents
contain “information concerning interesting phases of human activity and embrac[ing] all issues about
which information is appropriate so that individuals may cope with the exigencies of their period.”
Campbell, 614 F.2d at 397. Therefore, because the same determination is not at issue, there was no
relevant state court determination for the district court to which the district court should have
deferred. Next Level Commc’ns LP v. DSC Commc’ns Corp., 179 F.3d 244, 250 (5th Cir. 1999) (res
judicata requires that the same issue be present in both cases).4
III. CONCLUSION
For the above reasons, we affirm the judgment of the district court.
4
The Erie doctrine requires a federal court sitting in diversity to apply the state law in which it
sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The district court here properly applied
Texas law to the invasion of privacy claim.
“The Rooker/Feldman doctrine holds that federal district courts lack jurisdiction to
entertain collateral attacks on state judgments.” United States v. Shepherd, 23 F.3d 923 (5th Cir.
1994). This doctrine generally applies to “cases brought by state court losers complaining of
injuries caused by state court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). In this case, Lowe is the plaintiff,
requesting that the federal courts exercise jurisdiction over his cause of action. Therefore,
Rooker-Feldman, an abstention doctrine used to defeat federal jurisdiction, is not relevant in this
context.
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