COX BROADCASTING CORPORATION v. COHN

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Argument of Kirk M. Mcalpin

Chief Justice Warren E. Burger: We'll hear arguments next in 73-938, Cox Broadcasting against Martin Cohn.

Mr. McAlpin, I think you can proceed whenever you're ready.

Mr. Kirk M. Mcalpin: Mr. Chief Justice, may it please the Court.

This case is here before you today on an appeal from the Supreme Court of Georgia.

It's an invasion of privacy case but does not involve libel.

It does not involve any false statements.

It does not involve any deformation.

It's clearly a truthful, non-defamatory statement of a reporting of public trial in the State of Georgia.

It is a decision from the Supreme Court of Georgia to which we complain.

It was a 4-3 decision.

The majority decision of the Supreme Court of Georgia held First Amendment rights provided constitutional guarantee of freedom of the press could not operate in favor of the defendant in this case.

I think the factual circumstances of importing of the trial might be very significant.

I would like to take just a minute to deal with that.

Chief Justice Warren E. Burger: You're going to deal with jurisdiction and due course, I take it.

Mr. Kirk M. Mcalpin: Yes, sir.

I am, Your Honor.

On February of the 19th, you reserved the right on jurisdiction to the hearing on the merits of today.

We are here as you know on an appeal and not a certiorari, we've asked alternatively for certiorari.

We are here under 1257.

I think the -- without belaboring that issue, I do want to treat it briefly.

We have covered it in our brief.

We feel that the recent Tornillo case, the Snyder case that is the North Dakota Pharmacy case amidst the finality issue suffice it to say that the Supreme Court of Georgia when they upheld the constitutionality of the statute which provided that we could not publish name or identity of a rape victim or one who was assaulted.

They effectively destroyed our First Amendment Rights in the trial court.

There is a remand but that remand by the Supreme Court of Georgia deals with the right of the plaintiff and not the constitutional right of the defendant.

The remand went to the trial court was to this effect that the holding was, the Court is well aware, that the publication on identity of a name of a murder-rape victim and that is important in this case.

It was not solely a rape victim -- the murder-rape victim was not a matter of public interest or general concern in the State of Georgia.

Now, that precluded effectively, we say and made this case right for review in this Court as in Snyder and as in Tornillo that it made -- it precluded the defendant, our client from asserting any rights in the lower court regarding in the constitutional First Amendment considerations.

We think that like Tornillo, that it would be a delay, it would be a costly trial.

These considerations we think there's an urgency because of the freedom of press.

We think that here is a statute.

It's a restraint, a restraint on the freedom of the press.

The presumption that this Court has dealt with is when a restraint imposes itself by state statute otherwise on First Amendment rights, it comes here with the presumption of invalidity.

Here, we had a reporting of a public trial, we have freedom of the press, the editors and not only the editors of news media in Georgia but everywhere where we have multi-state reporting have no conception as to what the rule would be.

Now, you remember there are only four states that have similar statutes, Florida, South California, Georgia, and Wisconsin, yet anybody that publishes a story that may go into another state.

Example, Saturday there was such a report in New Washington paper Saturday morning.

Yet, in fact story should go into Georgia.

The press has an exposure under Georgia law.

Likewise, if that story emanated in Georgia then came up on the national news service.

Georgia would have an action for the publication possibly both ways.

So we are dealing and I say the urgency is, we are dealing with the freedom of the press.

No one knows what the rule particularly is.

I like to try to deal with that a little bit today.

We say the urgency is that the freedom of the press if you say to extend this back to the trial court, it may take two or three years.

If this is an unconstitutional statute as we submit and with the presumption of invalidity as it comes to this Court --

Justice William H. Rehnquist: Where do you -- what case of our do you get the presumption of invalidity from?

Mr. Kirk M. Mcalpin: The Keefe case.

Justice William H. Rehnquist: But that was a -- that was a prior injunctive restraint, wasn't it?

Mr. Kirk M. Mcalpin: That was a preliminary injunction and brought by -- they are passing leaflets and blockbusting.

Justice William H. Rehnquist: Yes.

Well, nobody enjoined you from making mistake.

Now, there's just a question whether you'll be held liable in damages for violation of the respondent's privacy?

Mr. Kirk M. Mcalpin: But Your Honor, nobody else can make it and if we don't resolve this case and if we are entitled and I want to deal with the factual circumstances in this case.

If we misjudge, we, for the next several years maybe cannot report anything further and if there is a constitutional right to publish as we complain -- state that this is a matter of public interest then it does not seem that that should be delay that we should have that right immediately.

Justice William H. Rehnquist: Well, then in your view, all First Amendment cases involve prior restraint?

Mr. Kirk M. Mcalpin: Not necessarily.

Justice William H. Rehnquist: Well, what wouldn't under that analysis if you're -- you're always going to have some sanctions that you feel that you would have (Voice Overlap) after.

Mr. Kirk M. Mcalpin: You held that a judgment is a state restraint.

You held that an injunction is a state restraint.

A statute is a state restraint.

It maybe that these cases that there is such restraint there.

Chief Justice Warren E. Burger: Are they all prior restraint so, that's the issue that we're focusing on now?

Mr. Kirk M. Mcalpin: Well, I think this case is a prior restraint.

I think this case by virtue of statute, it is a prior restraint.

I think that may separate an immediate injunction from a standing statute such our regulation you have dealt with standing statutes regulation as prior restraint so on the freedom of the press.

Now, I think that also the urgency here is this decision shows that the legislature of Georgia now is empowered at any time.

Justice William O. Douglas: But Mr. McAlpin didn't -- as I read the opinion of the Supreme Court of Georgia and I'm looking at jurisdictional statement page 812 and 813.

They disclaimed any relevance of the statute, the existence of the civil action for damages of invasion of privacy (Voice Overlap) case.

Justice Potter Stewart: You have to discern, there is 824 and read their opinion on motion for rehearing.

Mr. Kirk M. Mcalpin: Yes, sir.

Justice Potter Stewart: Where they do rely on the statute.

Mr. Kirk M. Mcalpin: In the second case, Your Honor --

Justice William O. Douglas: They may rely on it but they say that independent -- do they say that only the existence of the statute (Voice Overlap)?

Justice Potter Stewart: Yes.

Mr. Kirk M. Mcalpin: Excuse me, Your Honor.

Justice William O. Douglas: Creates the cause of action?

Mr. Kirk M. Mcalpin: Yes sir, in the second (Voice Overlap).

Justice Potter Stewart: The Georgia law, generally, is that a truthful report of a matter of general interest is -- cannot make anybody liable in Georgia and that's well settled that they say that because of the statute, the Georgia legislature is held that this is not a matter of general interest.

Mr. Kirk M. Mcalpin: That's correct Your Honor.

That was on the motion for rehearing.

Justice Potter Stewart: So the statute is essential to blind liability on this lawsuit and that's what the opinion on motion for rehearing makes clear beginning on page 824?

Mr. Kirk M. Mcalpin: That's correct.

Justice Potter Stewart: I would suppose your answer to Justice Rehnquist to be that Mills against Alabama is your case that would indicate there might be jurisdiction here rather than the Citizens for Better Austin against Keefe which is an injunction case.

Mills against Alabama was not.

Mr. Kirk M. Mcalpin: Mills versus Alabama, the only reason I didn't -- we rely on our brief on Mills versus Alabama also in North Dakota Pharmacy, Snyder, and Tornillo.

Mills versus Alabama of course are the distinction and we submit that that is the law and that's supports us but in that case it was just about stipulated that there were no defenses that the party would have if the case went back for trial.

As in Tornillo, where there were defenses on a remand or likewise there will be some defenses that we would have and that's why I didn't use in argument the Mills versus Alabama case.

But the defenses are -- would not, the defenses would not involve the First Amendment.

We would try to deal as, it's like libel, we would try to submit to show that the plaintiff had not had his invasion -- his privacy invaded and it was not offensive but we think that that question that that should not be submitted to the trial court, and that's we you should take possibly appeal here.

Justice William H. Rehnquist: Well, my question here it was not a just to the jurisdictional issue contrary to Justice Stewart suggest and I think you responded along the lines I have anticipated but you style this as a prior restraint and I have thought that the distinction in our cases was that a prior restraint was something that you're prohibited from doing in advance of trying to do with.

Here, there was no prohibition, there was no injunction that you would be in contempt of, if you want to have them publish this and you're simply being subjected to damages is afterwards like in a libel case.

Mr. Kirk M. Mcalpin: It's a misdemeanor action Your Honor under the Georgia law.

Justice William H. Rehnquist: Nobody is prosecuting it.

Mr. Kirk M. Mcalpin: Well, on the other hand, there was a prosecution and he view in the Wisconsin case in South California maybe our case they rely upon --

Justice William H. Rehnquist: But nobody is prosecuting you and under Georgia law.

Justice Potter Stewart: Even if they were that wouldn't be a prior restraint, Mr. Justice Rehnquist is so correct.

Prior restraint has a rather technical meaning and that's not involved here.

Post -- after the fact, you got a criminal or civil liability has nothing to do with the prior restraint.

Mr. Kirk M. Mcalpin: Well, Your Honor we don't buttress on our trial argument on that point.

I would recognize the court's consideration.

It does seem though and we submit solely in our brief that the threat of criminal prosecution at any time would be -- well, it certainly has a chilling effect, in a certain degree it's a self-censorship on us that this Court has condoned in Nebraska and in New York Times versus Sullivan.

And if that is and that certainly the Court has stated that and we recognized that in this area that where there is such chilling effect and where there is self-censorship that we are opposing in ourselves on our First Amendment right which we say is a constitutional guarantee to us that to prove -- to print newsworthy items and that is a public and common interest on a jurisdictional question.

I would submit that there is an urgency to resolve this that there is an urgency to set a rule so that the press will not be in doubt and if the First Amendment which we submit and I would like to deal with it very briefly.

Thus, give us this right to publish what is a matter of common interest in the Supreme Court of Georgia and the statute of Georgia should not deprive of selling --

Justice Potter Stewart: Don't the code of ethics -- doesn't the code of ethics or canon to journalism already imposed restraints upon you directing now to your present argument that this has some chilling effect?

Are there canons of journalism that already imposed this kind of restraint on you?

Mr. Kirk M. Mcalpin: The State of Georgia has mentioned that.

Justice Potter Stewart: Well, was that correct or not?

They were right about it?

Mr. Kirk M. Mcalpin: Well, I think that there is probably is a -- canons of ethics to effect Your Honor, but on the other hand if there is (Voice Overlap)

Justice Potter Stewart: Where there would be that much chilling effect, would they not?

Mr. Kirk M. Mcalpin: I don't think in this particular case Your Honor that there would be even any violation of those ethical principles because in this case the circumstances of the trial itself I do not believe what in any way come within the canons of ethics of the editors which we were refer to for this reason and maybe if you permit to do so, I should probably reach that point.

In this case, as in Craig versus Harney, this was public trial.

This was the trial of six boys who went on trial for the murder-rape of Cynthia Cohn.

Remember that eight months before this trial, the girl's name had never been released.

At the trial and the circumstances of this trial are rather unusual and the result of this circumstances.

At this trial, these six boys decide to plead guilty.

One of them, after sentencing, one of them withdrew his plea of guilty but it was by reason of the father -- the father of Cynthia Cohn whose name has not been disclosed in this report who asked the prosecutor to give leniency and to recommend a five-year term for these boys.

Now, remember he was not there, he was -- I don't know if even he is a material witness or not.

The prosecutor in this case asked the judge to accept the parent's recommendations and withdraw the murder charges and to give the boys fiver years.

Now, on a five-year term, they were sentenced.

One of them withdrew his plea and he was to be tried before a jury.

At that time, this is very significant as you have said in the Butts case where Justice Harlan said that if the person was in the courtroom and actually was present there and saw this as in the Harney case, the reporter Wassell was in the courtroom.

The name of the Cynthia Cohn was on the indictment, it was a public record.

It was handed to the reporter in the courtroom by the clerk.

He has to look at the indictment and at that time it was murder-rape on Cynthia Cohn.

He went right outside the courtroom right after these have occurred.

After the case, Wassell televised a report on the courthouse steps very timely not like Briscoe that the Supreme Court of Georgia uses 11 years later which we submit the question of remoteness is not very material in these cases.

But he went right out there and he told what happened.

It was factual, it was true, nobody disputes that, that's not an issue.

At that time he released the name of the girl Cynthia Cohn.

He merely says that this time that the boys were brought before the court, they were tried and it was great interest to the people of Sandy Springs and then publishes the name.

Now, this we submit on First Amendment Rights that this was a public reporting of a public trial and where is the girl's name was a newsworthy item.

It was a routine item and we submit that this case may have -- it may confess some several rules out of this case.

But knowing of the dilemma in the privacy field, I would like to -- maybe try to treat some of the areas that this case may fit.

Justice Thurgood Marshall: Mr. McAlpin, if I may for a moment.

Suppose it's been a trial closed to the public, would your argument be any different?

Mr. Kirk M. Mcalpin: Your Honor, I said --

Justice Thurgood Marshall: Would you mind if you emphasize the fact there was a public trial.

Mr. Kirk M. Mcalpin: It was a public trial.

There was no restraints made by the judge, the name of --

Justice Thurgood Marshall: Underlying on that or would it be the same if it were private?

I mean the public was excluded.

Mr. Kirk M. Mcalpin: Well, the plaintiff makes reference to juvenile in cases where and we comment the court, we comment in our brief that those statutes -- I'm not certainly really that that would be a distinction Your Honor.

I'd like to reach that because while we say that those cases the juvenile, the closed cases are distinguishable.

When you publish in truth on non-defamatory matter, we are not really certain.

We don't think we have to reach that in this case, but nevertheless we have dealt with, we are thinking about it and you're dealing with truthful, non-defamatory reporting guaranteed by the Constitution on a question dealing with -- we may say initially created rights of privacy.

Then, you may not it maybe that closed sessions or juvenile report is even where it says it's not available would not be privileged.

And I think there --

Justice Potter Stewart: It might also be that you might not have a name either of the victim, if they were close to you.

Here, their name was readily available to the entire public including your client.

Mr. Kirk M. Mcalpin: That's correct Your Honor and to answer that yes, sir --

Justice William O. Douglas: The Government's word -- say that the First Amendment right is an absolute one to publish this girl's name no matter where from what source who obtained it?

Mr. Kirk M. Mcalpin: Your Honor --

Justice William O. Douglas: If it's true that she is the one who was the victim.

Mr. Kirk M. Mcalpin: Under your -- under decisions of this Court that has been held that there are limitations on exercise of First Amendment Rights.

I don't think in this case we have to go beyond that.

Justice William O. Douglas: I know we don't, but I'm asking whether you want us to go beyond.

You said earlier that you thought this was something (Voice Overlap).

Mr. Kirk M. Mcalpin: We are not asking for that but I do think in treatment of the First Amendment question in privacy areas.

I'm prepared to deal with that a little bit but I do not think it's necessary in this case to go beyond that.

Justice William O. Douglas: But you want us then to limit this to a First Amendment Right truthfully to a report to judicial proceeding?

Mr. Kirk M. Mcalpin: No sir, I do not.

Justice William O. Douglas: You want us to go beyond that?

Mr. Kirk M. Mcalpin: That's I say I think that these rules --

Justice William O. Douglas: But how far beyond that you want us to go?

Mr. Kirk M. Mcalpin: Well, Your Honor it maybe that truthful reporting of non-defamatory matter has absolute privilege.

Justice William O. Douglas: Well, do you want us to go that far?

Mr. Kirk M. Mcalpin: Well, yes sir.

Justice Potter Stewart: I thought you wanted us to deal with the constitutional validity of this Georgia statute on its face?

Mr. Kirk M. Mcalpin: We do Your Honor and I would like --

Justice Potter Stewart: And that's all we could do, isn't it?

Mr. Kirk M. Mcalpin: Alright sir.

But I was asked the question and dealing with this question, it does become somewhat concern -- it does concern us somewhat that there may be in truthful, non-defamatory publications.

It maybe that the right of --the so-called right of invasion of privacy may not enjoy the same position as this does in intrusion cases, appropriation cases, false light cases.

Those are three areas of invasion of privacy that don't apply here and this is not that type of case.

Here, we have and the reason I say this Your Honor, we are somewhat concerned by virtue of the fact that truth and defamation traditionally, historically is absolute defense with no reference to remoteness of time.

In this Warren case, in which you sent to Time versus Hill -- it came forth to Time versus Hill case back here for reargument in view as far in New York where the Circuit Court there said that they will not -- the truth and the instances of truth that New York no one can violate that New York statute as I recall.

Now, truth there, it didn't say is truthful today, yesterday, 11 years ago like in Briscoe, and the question there in every instance that when you're dealing with truth in publications on falsity defamation where truth is a defense as an absolute defense.

Yet when you turn around and come into privacy areas and when you have an absolute right to publish and to say -- Your Honor, Mr. Justice Brennan, I don't mean -- I recognized in the decisions of this Court as absolute subject the restrictions on the (Inaudible) and the revelations and things of this nature.

Justice William O. Douglas: Well, I think in this area, this is probably the first case.

Mr. Kirk M. Mcalpin: It is.

Justice William O. Douglas: As I recall, since I've been here where we dealt with concededly truthful report.

Mr. Kirk M. Mcalpin: This is correct.

Justice William O. Douglas: And the question of the extent to which at least there's a press is concerned.

Mr. Kirk M. Mcalpin: That's right.

Justice William O. Douglas: Under the First Amendment protection to publish that no matter where it comes from?

Mr. Kirk M. Mcalpin: That's right.

Justice William O. Douglas: That's not something we dealt with --

Mr. Kirk M. Mcalpin: That's right and we tried to label with the question of invasion of privacy in a truthful area as against the right of freedom of press recognizing that this should be given every possible by this Court even has been every possible right with no restraint or no impairment at all.

But in this area where there is no falsity, there is no fixed (Inaudible), there is no distortions, there is no intrusion, there is no appropriation, there is no false light and then this area then you put the Constitution First Amendment language right by question of this nature and look back to 1890 when the question was raised on invasion of privacy by Justice Brandeis and Warren in the history.

And I recognized at this Court his, -- in the sense has said that the invasion of privacy enjoys the constitutional protection, but as Justice Black said in his concurring opinion in Time versus Hill, he refers to it as judicially-created right and he says that if the courts continue to try their balance and weigh and take each, you're going to dilute more and more the right in the press.

Now, we are not here, we're in this case because we may suit for million dollars but it's a bigger question than that.

It's a question, what does a press know to publish where there's truth and how do you determine that?

I want to deal quickly with that but hear maybe the rules that you could possibly fashion.

Your precedent seemed to give in this while this is the only the case dealing particularly with this issue.

There may be presence which gives these four type of rules which you might get employ and the first one is that a matter of public interest as you held in Hill that if the name is a matter of public interest.

Now, I'm now leaving for a minute to record of the trial, the Harney case but come into the bigger question.

If it's a matter of public interest or rationally related as you said in employees, and we say that the trial is admitted in this case.

There is a clear question that the trial itself is a matter of public interest that the name was routinely used as a matter of public interest.

And therefore, that general proposition would be sufficient, but then you have Tornillo --

Justice Lewis F. Powell: Excuse me may I interrupt you for a minute?

Mr. Kirk M. Mcalpin: Yes, sir.

Justice Lewis F. Powell: Who decides what is a matter of public interests?

Mr. Kirk M. Mcalpin: Yes sir, that's the next things I was coming to Justice Powell.

In Gertz, would like to address that in few minutes I have because I think that's critical.

I know in Gertz, this Court says that we -- this Court does not want to deal with matters of public interest and to make that determination.

Yet, you did decide that Gertz was a private individual, made initial determination that Gertz was not a public official or public figure and he was a private individual.

We would submit that under Tornillo and possibly under the rule that you have established when you let AP out in Butts case that you may have a rule that would say that this Court that it's an editor's judgment unless is clear and extreme abuse.

And I think that the question of public interest is the editor's decision because what you determine in the Tornillo is you said there's no imagination how can we find that government interference with what the editor puts in their paper and his exercise of editorial judgment.

How can that not take away the freedom of press?

Now, in Tornillo you let be the judgment (Voice Overlap)

Justice Lewis F. Powell: May I follow up that question?

Mr. Kirk M. Mcalpin: Alright sir.

Justice Lewis F. Powell: If it's the editor's decision then the judiciary would have no further function in this area?

Mr. Kirk M. Mcalpin: Your Honor, it may be.

You left it in Tornillo that was his judgment but I can see very well that there could be extreme abuses and we might suggest to the Court that what Justice Harlan said in the Butts case and I just very briefly.

On a showing of how unreasonable conduct constitute in an extreme departure from standards of investigation reporting ordinarily adhere to by reasonable publishes that only in those instances and I think this Court should make the initial determination when an abuse question comes.

You have done it in Miller versus California.

You said there's no difficulty for us to determine what's commerce in ideas as against commercial exploitation.

The question of whether you submitted to the jury and the Roy case, I think that was in Monitor Patriot case.

You said the question of relevance should not be submitted to the jury on standards of New York Times and this Court has recognized the uncertainty that juries can play.

Throughout your cases and the Gertz case, Justice Powell you indicated concern about what juries would do.

So, we submit that if you take Tornillo and you used the rule which was referred to in Gertz of the where it is extreme, where if it danger of substantial reputation to the reputation as apparent.

And when you leave the editorial judgment and you have these two considerations either publication of the truth, non-defamatory like this carries with it if we may say so absolute privilege.

And the Chappy says in invasion of privacy cases has mentioned in -- I think in the Gertz case or the Hill case that invasion of privacy cases possibly the individual where in this case were there's truth that he will have to stand his reputation before the public.

Now, I say that there maybe a cutting out of (Inaudible), of intrusion but those are not, those are intentional thoughts.

Those are appropriation entry, intrusions and false light cases.

Here, there may be that rule or there maybe the rule and we suggest it to the Court that Tornillo with the rule if you want to have a provision for review of Justice Harlan's rule and you shall rule in the Butts case, it's only in those extreme cases where they do not, where they depart.

The ruling was severe departure, he said and when they meant to find about AP and then let AP out.

Their presence, they were in the courtroom that day they examined everything like here and they made their decision unlike Curtis Publishing where it was a feature story and they had two or three months lead time and they said, there was no finding of a severe departure from accepted publishing practices.

So we would submit that it is the editors in this case and in that way, you would serve to give the press a clear, understandable, and predictable rule that they could live with.

Right now, the press in America in privacy cases, they won't know whether or not you're going to be considered newsworthy today or whether you're going to consider it newsworthy published 11 years ago or 10 years ago.

The expense of coming to a court every time is unmanageable by the news media.

And therefore, if you can fashion a rule in truthful cases, either one that in the case like this it has absolute privilege but in this case I'm talking now about the record.

We say we have already got that we have shown that, but in this case to apply the all such privacy cases that the editor's judgment should be paramount into consideration.

Chief Justice Warren E. Burger: Thank you Mr. McAlpin.

Mr. Land.

Argument of Stephen A. Land

Mr. Stephen A. Land: Mr. Chief Justice and may it please the Court.

I would like at the outset to restate in different words, but I think the issue in this case is and that is, is the public identification of the identity of the victim of a right a matter of public concern.

And thereby constitutionally protected or is it not and if it's not, can the state legislatively or judicially insure the privacy of a raped female and her family through either penal or civil sanctions.

I would also like to say at the outset that there is a distinction in this case that I believe the Supreme Court of Georgia drew.

I do not believe that the Supreme Court of Georgia made an initial threshold decision.

It did make that threshold decision that the specific identity of the victim of a rape was not a matter of general public concern or newsworthy in the constitutional sense.

And only after it made that initial decision, did it hold that the statute involved here was constitutional and not in violation of the First Amendment, but it's the initial decision that was essential before we reach the second.

I would also like to state that there is no injunctive relief involved in this case.

I think that the issue raised by one of the Court member's questions is an important one as to the difference between prior restraint and no prior restraint.

And that will be found in a constitutional provision of the State of Georgia which holds that there is absolute freedom of the press.

I don't have the precise language but there is absolute freedom of the press that shall not be infringed but those who exercise that freedom our responsible for the consequences in certain circumstances.

And I think some reference to the facts is also necessary.

It was on August 18 of 1971 that the appellee's 17-year-old daughter was raped and she died shortly after that rape.

Six young men sometime later, some six months later were indicted for murder and rape.

The murder case was dismissed by nol pros or nolle prosequi.

The rape and the death was widely publicized but no mention of the specific identity of the victim was made until the day of the disposition of five of the six cases in Fulton Superior Court in Atlanta.

The trial court upon dealing with this case got it on summary judgments.

The Civil Practice Act of Georgia is quite similar to the federal rules of several procedure.

The trial court granted a summary judgment for the plaintiff on liability and denied defendant's motion for summary judgment.

It is essential to realize when the Supreme Court of Georgia reversed that decision.

It reversed the summary judgment for plaintiff for very important reasons.

I argued in behalf appellee at that time of the plaintiff that the statute created a civil cause of action and negligence per se.

The Supreme Court of Georgia did not concur with that.

And now, looking back at it, I'm glad they did not concur because I believe that a statute that did create a civil cause of action and negligence per se in this case could not be sustained in the light of the previous decisions of this Court.

However, they are very careful to say that that statute did not create a civil cause of action when negligence per se.

They stated only that the statute, the criminal statute here set the state policy or public policy of the State of Georgia and they made that initial threshold determination that the specific identity of the victim of a rape is not a matter of public concern that it did not rise to the level of First Amendment interest that what we were dealing with here is a civil action for invasion of privacy.

If we go back to try this case, the issue is, was the appellee's privacy invaded?

Not a constitutional question at all.

Justice William J. Brennan: And the defendant is stripped of any defense that this was a matter of public interest?

Mr. Stephen A. Land: The defense, yet I would not agree with that Mr. Justice Brennan.

I think he does have that defense because the court is not preventing the appellants from defending themselves against that challenge.

They can always state that in this case their violation of the privacy was not an invasion of privacy as that thought has been defined that it was reasonable and justified under the circumstances of this case.

Chief Justice Warren E. Burger: Do you mean if possibly the victim was the daughter of the Governor of the States that that might be one of the kinds of cases where protection would not extend?

Mr. Stephen A. Land: I would not like to say that Mr. Justice Burger.

Chief Justice Warren E. Burger: Well, would give us some kind of an idea of what might be one of the exceptions?

Mr. Stephen A. Land: I would think that the point that you just raised if it was the Governor of Georgia or the President's daughter or whatever gets into the area of public and private figures which I do not believe has a relevance to these cases.

I do like some of the language in the cases and particular Justice Douglas' language and I believe arose in Black case which said that, it ought no be troubling so much with the public and private persons, it's the matter itself, the news that the problem is it or isn't a matter of public concern.

If you say it's not, then whoever is involved would have nothing to do with it.

Justice Lewis F. Powell: Well, Mr. Land, would the petitioner or appellant be able to defend on the ground that the mere fact that they were reporting a court proceeding involving pleas to an indictment which named this young lady was itself evidence that this was a matter of public interest?

Mr. Stephen A. Land: I think not Your Honor because --

Justice Lewis F. Powell: He could not do that?

Mr. Stephen A. Land: I would think not because if you would say so and grant that argument then every case of any description brought by any party would be a merit --

Justice Lewis F. Powell: Well, I don't quite understand what's open to you in your submission.

Mr. Stephen A. Land: What is open to them by way of -- Well, number one is negligence, were they negligent or were they not negligent?

Was the specific publication offensive in the sense of the invasion of privacy in the elements of that offense?

Would it outrage the sensibilities of a reasonable man?

Some cases I can conceive of it might not and this might be one of them.

They might hold that well since she was dead six or eight months before, since they didn't do it in a sensationalize, if that's what they want to do, sensationalize manner.

Since they didn't do a lot of things that I can conceive of then they did not violate the right to privacy and that this does not rise to that level that shocks the conscience of individuals or is offensive.

In fact, the Court might make that determination before it ever got to a jury.

Justice Lewis F. Powell: But there would be no defense rooted in the Constitution?

Mr. Stephen A. Land: Not in the constitutional sense itself.

Justice Lewis F. Powell: In that issue, do you think it's been plainly disposed of in the Georgia Court?

Mr. Stephen A. Land: I would have to say that to be candid with you Your Honor, yes.

I think it has been.

I think they have made a threshold decision themselves.

I think it's the same decision this Court made over and over again because if I'm not correct, I'm sure member of the Court will correct me.

But I do not recall a case in that Time versus Hill and New York Times versus Sullivan and all the rest in which there was not a presumption that the matter that was being discussed was one of public or general concern.

That threshold assumption had it been made by someone and presume this Court made it.

Justice Lewis F. Powell: Do we have jurisdiction here?

Mr. Stephen A. Land: In a sense.

Justice Lewis F. Powell: Well, do we or don't we?

Mr. Stephen A. Land: I think not.

Justice Lewis F. Powell: Is this final -- is this a final judgment?

Mr. Stephen A. Land: It is far from a final judgment in the sense that it's only on summary judgment that was interlocutory step just like under the federal rules of civil procedure.

A great deal needs to be litigated in this case, the factual situation that --

Justice Lewis F. Powell: Constitutional -- you just said, the constitutional issue is fully decided and finally disposed off?

Mr. Stephen A. Land: In so far as in Georgia, as far as Georgia is concerned it has made the initial threshold decision that this -- in this case.

Justice Lewis F. Powell: I know but it's final in this case?

Mr. Stephen A. Land: Yes.

Justice Lewis F. Powell: The lower courts can't re-decide the Constitution.

Mr. Stephen A. Land: I see no way Fulton Superior Court could turn around and say that the identity of a rape victim is a matter of general public interest.

Justice Lewis F. Powell: Well, how about this Mr. Land?

Is there before us as a constitutional question, as a constitutional question whether on the facts of this case namely the reporter by judicial proceeding?

There is constitutional protection for the reporter, that issue is before us, isn't it?

Mr. Stephen A. Land: That issue was before the Supreme Court.

Justice Lewis F. Powell: I know, is it before us?

Mr. Stephen A. Land: As a general proposition or as a constitutional procedure or statutory?

Justice Lewis F. Powell: As a constitutional matter.

Suppose we disagree with the Supreme Court of Georgia and we're to say that no this is the report of a judicial proceeding namely the plead proceedings and the rest of it and the out of which came the report that the indictment named Cynthia Cohn and we would to say that this kind of publication has First Amendment protection.

That issue is before us, isn't it?

Mr. Stephen A. Land: It is and isn't which is of course a weasel sort of answer.

Justice Lewis F. Powell: Well, why is it that?

Mr. Stephen A. Land: Because initially the judicial -- the question of a judicial trial begs the question of the essentials of this case.

It's either a judicial trial that could be anything else.

Justice Lewis F. Powell: Isn't it conceivable to might be a distinction between the report of a judicial trial which disclosed the name of the victim and a report from some other source?

Mr. Stephen A. Land: Between us for example, I can think of a police report or a report of by word of mouth or some other matter rather than a judicial trial.

Justice Lewis F. Powell: Yes.

Mr. Stephen A. Land: No, I don't think the distinction is valid.

I really don't, I think that either one of them, the girl is entitled to the protection --

Justice Lewis F. Powell: So that if there's any First Amendment Protection for this support at all, it would extend to a report as long as it's truthful without regard to the source.

Mr. Stephen A. Land: I'm not sure I follow the question.

Justice Lewis F. Powell: Without regard to where Cox learned the name.

Whether it learned it from a police report, a judicial proceeding, word of mouth, wherever it got it.

You would say if there's any First Amendment protection, it has to cover the whole spectrum and can't be limited to the report of a judicial proceeding?

Mr. Stephen A. Land: I would agree with that yes.

Justice William H. Rehnquist: I thought you said a moment just the opposite that area depending on the circumstances of the source of the report whether word of mouth or police report the reconstitution result might be different?

Mr. Stephen A. Land: No, I think I said that the result might be different before a jury in the trial court in invasion of privacy tort suit.

That's where there're may be a distinction because the evidence there may be so weak as to not justify them in finding an outrage or offensive to reasonable man standard.

And whereas the constitutional issue would not be involved at all and I cannot see that ipso facto because it's a matter of public -- in a public record in the trial in the state court, it automatically becomes a matter of public and general interest because if that's true, everything that happens in the court has become some public domain and the press confront it regardless of any feelings of privacy for anyone under any circumstances.

Justice Byron R. White: Well, historically though the press has enjoyed a qualified privilege as respect to judicial proceedings and it hasn't which in other contexts.

Mr. Stephen A. Land: I'm not --

Justice Byron R. White: It's just as a matter of state libel law.

Mr. Stephen A. Land: Well, the State of Georgia has acted on that regard.

There is a statute that protects the press from which called newspaper liable as an exception for it but that exception did not according to the Supreme Court of Georgia applied to this case.

Justice Byron R. White: No, but it is -- it has been characteristics of libel law to distinguish between the reports of the judicial proceedings --

Mr. Stephen A. Land: Well --

Justice Byron R. White: -- and other kinds of report?

I would agree, but --

Justice Thurgood Marshall: Mr. Land, I assume that in Georgia, there's no question of right of privacy action survived in death?

Mr. Stephen A. Land: No sir, that issue did not come up precisely that way in this case and the counsel for appellants who are quite able raised that the question was, was there a so-called relational right of privacy?

Justice Thurgood Marshall: But that would really be state law question in there.

Mr. Stephen A. Land: Yes sir and it was determined that the father did have a cause of action of his own.

There was no survival and I would like also to emphasize to the utmost that I'm able that the press is laboring under an extremely minimal restriction here.

They are free to report everything about the crime, everything about the incident, everything about the event itself.

The only restriction on them is the specific identification of the victim of a right and this in my opinion distinguishes this case from the others especially Time against Hill.

You had no state interest per se in that case in protecting anonymity.

You have here the strongest possible state interest in protecting anonymity over and above the individual's interest in privacy which we all have to a greater or limited extent.

But here, you've got both, you got the state's interest in the prosecutorial function, the difficulty in prosecuting rapes, the well-known reluctance of rape victims to go ahead with the prosecution because of the absolute harm that it involves for them and speaking of privacy she already has her privacy invaded in the most brutal form that we know of and then over at the top of that if you tell the families of victims in rapes, the families and the rape victim themselves in Georgia that you're not going to get any relief from publicity in the press and the news media, you will have one more area.

Justice Thurgood Marshall: But this statute would apply even if the victim and the family had no objection.

Mr. Stephen A. Land: I would not concur with that Justice Marshall, I think --

Justice Thurgood Marshall: But what in the statute do you point to amend?

Mr. Stephen A. Land: Well, the statute has drawn is a criminal misdemeanor statute and we --

Justice Thurgood Marshall: And it says?

Mr. Stephen A. Land: We are not dealing with a criminal case.

If a prosecution were initiated, if the person wish to waive and a victim could in all privacy cases and the essential element is that there has been no waiver implied or expressed of the right to privacy.

But if the victim wanted for some reason the publicity, I cannot conceive of a -- her being unable to do so.

Justice Thurgood Marshall: But the statute is broad enough to cover.

Mr. Stephen A. Land: Well, if the prosecution were initiated I will --

Justice Thurgood Marshall: Well, the statute does not make any exception, does it?

Mr. Stephen A. Land: It does not.

Justice Thurgood Marshall: Well that's the question.

Mr. Stephen A. Land: The only exceptions will come in the trial of the case itself to see whether there is in fact a civil cause of action and comes up to the test.

Justice William O. Douglas: Would your argument be any different Mr. Land if the victim were a common prostitute?

Mr. Stephen A. Land: No, sir.

Justice Byron R. White: I suppose one of the reasons the other side would advance here is that the absence of such statute tends to bring out witnesses as to character of the prosecuting witness.

Mr. Stephen A. Land: I don't accept that although I think that's a valid judgment that's being made by each side.

I've had a considerable background as a prosecutor and rape cases were among them and in rape case there was no difficulty in getting witnesses.

It was the difficulty in getting the victim as a witness to report it and to testify.

That was the difficulty but it's up to the prosecution to find those witnesses not the press, would be my response to that.

Justice William O. Douglas: Do you find any parallel in the comparative secrecy of juvenile proceedings?

Mr. Stephen A. Land: I do and it is not quite so the juvenile proceedings are not closed to the press to my knowledge.

They're not closed to anyone I'm --

Chief Justice Warren E. Burger: They are in some States.

Mr. Stephen A. Land: They are not in Georgia.

I can only speak for Atlanta, Georgia and the Juvenile Court of Fulton County to my knowledge is not closed to the press.

They can be there.

But there's contempt of court if they would have publish those names and I find a strong parallel between those laws protecting juveniles and the laws protecting rape victims from this kind of publicity.

Justice William H. Rehnquist: But the Juvenile Court in Fulton County I take it is closed to the just spectators of the general public, isn't it?

Mr. Stephen A. Land: My personal exp -- I'm going to have to speak from personal experiences I've never known of any restriction telling people to stay out, I don't know.

I would not want to make an assertion to this Court one way or the other on that, I could be wrong.

But I know of reporters over there because of personal involvement in a case and then they knew all about it and you read in the paper that the name of the juvenile was not released per Georgia law.

And they also said the same thing about rape case as well.

Chief Justice Warren E. Burger: Do you believe that if you do not prevail here that the Georgia restraints on publication of the names of the juvenile offenders will also go by the board?

Mr. Stephen A. Land: Not in this case, no.

Chief Justice Warren E. Burger: Not in this case, I'm talking about the general consequences.

Mr. Stephen A. Land: I think so yes.

I think you have to take that view of it Mr. Justice Burger if you take an absolutist view of the First Amendment.

If this case, if this restriction in this specific case cannot be done constitutionally within the First Amendment, I see no limits whatever on the press to invade the privacy of private citizens complete.

Chief Justice Warren E. Burger: But isn't it narrower than that if this Court should hold that the victim's name cannot be protected then it is not likely you're suggesting that it would hold that the offender's name would be entitled to protection?

Mr. Stephen A. Land: No, sir.

I would not propose to argue the protection of the offender's name so -- same to the social implications and all the other things that go into a judgment as to what is there is not a matter of public concern on that present.

I've been disagreed with by many people but I feel that in this case this specific area with rape is the issue.

There's a wholly different ball game from all the other criminal laws on the books.

This is a specific area where a judicial -- initial judicial review has been made with the background of the problems involved in rape.

In the Evjue case, the Wisconsin case that was referred to by counsel for appellants is right on the point where the Supreme Court of Wisconsin said, there might be a minimal intrusion on freedom of the press.

But that slight intrusion was hardly justification for its pinning the name and identity if the victim of a rape before the public with an extreme negative social implications that doing so.

Justice Lewis F. Powell: I gather Mr. Land you wouldn't be arguing the same position if Ms. Cohn has been murdered only and not been raped?

Mr. Stephen A. Land: No sir.

No, I would not make the same justification.

I don't think it can follow and that's why this case truly is narrow.

Justice Lewis F. Powell: I take it, this would be true of victims of other crimes, robberies, armed robberies,--

Mr. Stephen A. Land: The same social implications do not apply to those crimes.

Justice William O. Douglas: Do you know of any case that oppose against First Amendment challenge, the secrecy of the juvenile statute -- juvenile proceedings?

Mr. Stephen A. Land: I am not familiar with one.

I do think some of the language in, In re Cohen however, seems to imply the justification for such statutes and the reference is I believe in the Briscoe case in California in a footnote which referred to your decision in Time against Hill seemed to imply as well that there were justification where they said the First Amendment was not absolute and it was the footnote that said, for example the identities of victims of rape are protected in some States.

And then it said, in juvenile proceedings the names of juvenile are protected for social rehabilitative reasons and those same reasons are present here.

I would like to speak briefly as to two issues.

One of them, the issue of overbreadth that's been brought up and the other one on some other examples, and I might take those other examples first I think terribly persuasive as the decision of the Supreme Court of Massachusetts in Commonwealth against Wiseman.

There, you had an individual, an enterprising individual who took pictures of the State Mental Institution at Bridgewater, Massachusetts in the most extreme detail.

Justice Lewis F. Powell: That was the Titicut Follies?

Mr. Stephen A. Land: The Titicut Follies episode and the court specifically stated in that case that there is obviously the State of Mental Institutions in the Commonwealth of Massachusetts is of the greatest public concern.

But they did not find that the specific identification of the inmates was of any public interest and they know --

Justice Potter Stewart: But then that case arise in the basis of the law of contracts?

Wasn't that a contractual agreement?

Mr. Stephen A. Land: I know what you're speaking of that he violated his word.

He has agreement with them but I don't think --

Justice Potter Stewart: That was a contracts law case.

Mr. Stephen A. Land: I still don't believe that that was the thrust of their decision though, Your Honor.

I think that the thrust of it was that the identification of the inmates themselves and as it said at least without a release was certainly distinguishable from the cases that were decided by this Court in the New York Times versus Sullivan and the Pentagon Papers cases of tremendous importance to this country.

I don't think, I think the overbreadth doctrine has been met by the fact that this statute does not and cannot be used to invoke indiscriminately liability for invasions of privacy by themselves that the case must be proved on a standard of negligence and that the vice of Time against Hill is a avoided by the statutes itself.

The statute gave fair warning to the press to look out this kind of publication was unlawful in the State of Georgia.

We do not have what Mr. McAlpin said.

The press is not because of this case wondering where next that we are going to be suit for invasion of privacy.

In the sense, I think that although this cause of action might exist without the statute.

I think the vice of Time against Hill would be a problem there because they have no notice and there would be a problem in self-censorship.

That's been avoided by the enactment of this statute and for those reasons I believe the case should be affirmed.

Chief Justice Warren E. Burger: Very well, do you have any further Mr. McAlpin?

Thank you gentlemen.

The case is submitted.