The New Yorker Article

113 F.2d 806

138 A.L.R. 15, 1 Media L. Rep. 1775

(Cite as: 113 F.2d 806)

Circuit Court of Appeals, Second Circuit.

SIDIS

F-R PUB. CORPORATION.

No. 400.

July 22, 1940.

CLARK, Circuit Judge, dissenting in part.

Appeal from the District Court of the United States for the Southern

District of New York.

Action by William James Sidis against the F-R Publishing Corporation to

recover damages for violation of rights of privacy and for malicious libel.

From an order dismissing the claims for violation of rights of privacy, 34

F.Supp. 19, plaintiff appeals.

Affirmed.

West Headnotes

[1] Torts k8.5(3)

379k8.5(3)

(Formerly 379k8)

The intimate details of private life are not entitled to an absolute immunity

from the prying of the press, and a limited scrutiny may be had of the

private life of any person who has achieved, or has had thrust upon him, the

questionable and indefinable status of a "public figure".

[2] Torts k26(1)

379k26(1)

A complaint alleging the publication in a magazine without plaintiff's

consent of a biographical article which described plaintiff as one who had

been an infant prodigy and who in later life sought to conceal his identity

through his chosen career as an insignificant clerk, did not state a cause of

action for violation of plaintiff's alleged "right of privacy" under the law

of California, Georgia, Kansas, Kentucky or Missouri, notwithstanding

allegation of actual malice in the publication.

[3] Torts k8.5(7)

379k8.5(7)

(Formerly 379k8)

For "purposes of trade" within New York statute prohibiting the unauthorized

use for advertising purposes or for "purposes of trade" of the name, portrait

or picture of any living person does not contemplate the publication of a

newspaper, magazine or book which imparts truthful news or other factual

information to the public. Civil Rights Law N.Y. §§ 50, 51.

[4] Torts k26(1)

379k26(1)

A complaint alleging the publication in a magazine without plaintiff's

consent of two biographical articles which limited themselves to the

unvarnished, unfictionalized truth did not state a cause of action under New

York statutes prohibiting the unauthorized use for advertising or trade

purposes of the name, portrait or picture of any living person. Civil Rights

Law N.Y. §§ 50, 51.

[5] Torts k8.5(4)

379k8.5(4)

(Formerly 379k8)

Where magazine article regarding plaintiff did not violate New York statute

prohibiting the unauthorized use for advertising or trade purposes of the

name, portrait or picture of any living person, a newspaper advertisement

announcing the article shared the privilege enjoyed by the article,

particularly where the advertisement did not use the name, portrait or

picture of the plaintiff. Civil Rights Law N.Y. §§ 50, 51.

[6] Federal Courts k589

170Bk589

(Formerly 106k405(12.9), 106k405(12))

An order granting motion to dismiss first and second causes of action based

on violation of rights of privacy was an "appealable order," notwithstanding

that third cause of action alleging malicious libel remained standing.

Fed.Rules Civ.Proc. rule 54(b), 28 U.S.C.A.

*807 Edwin J. Lukas, of New York City (Sapinsley, Lukas & Santangelo and

Louis Okin, all of New York City, on the brief), for plaintiff-appellant.

Alexander Lindey, of New York City (Greenbaum, Wolff & Ernst and Harriet F.

Pilpel, all of New York City, on the brief), for defendant-appellee.

Before SWAN, CLARK, and PATTERSON, Circuit Judges.

CLARK, Circuit Judge.

William James Sidis was the unwilling subject of a brief biographical sketch

and cartoon printed in The New Yorker weekly magazine for August 14, 1937.

Further references were made to him in the issue of December 25, 1937, and in

a newspaper advertisement announcing the August 14 issue. He brought an

action in the district court against the publisher, F-R. Publishing

Corporation. His complaint stated three 'causes of action': The first

alleged violation of his right of privacy as that right is recognized in

California, Georgia, Kansas, Kentucky, and Missouri; the second charged

infringement of the rights afforded him under Secs. 50 and 51 of the N.Y.

Civil Rights Law (Consol. Laws, c. 6); the third claimed malicious libel

under the laws of Delaware, Florida, Illinois, Maine, Massachusetts,

Nebraska, New Hampshire, Pennsylvania, and Rhode Island. Defendant's motion

to dismiss the first two 'causes of action' was granted, and plaintiff has

filed an appeal from the order of dismissal. Since a majority of this court

believe that order appealable, for reasons referred to below, we may consider

the merits of the case.

William James Sidis was a famous child prodigy in 1910. His name and

prowess were well known to newspaper readers of the period. At the age of

eleven, he lectured to distinguished mathematicians on the subject of

Four-Dimensional Bodies. When he was sixteen, he was graduated from Harvard

College, amid considerable public attention. Since then, his name has

appeared in the press only sporadically, and he has sought to live as

unobtrusively as possible. Until the articles objected to appeared in The New

Yorker, he had apparently succeeded in his endeavor to avoid the public gaze.

Among The New Yorker's features are brief biographical sketches of current

and past personalities. In the latter department, which appears haphazardly

under the title of 'Where Are They Now.' the article on Sidis was printed

with a subtitle 'April Fool.' The author describes his subject's early

accomplishments in mathematics and the wide-spread attention he received,

then recounts his general breakdown and the revulsion which Sidis thereafter

felt for his former life of fame and study. The unfortunate prodigy is

traced over the years that followed, through his attempts to conceal his

identity, through his chosen career as an insignificant clerk who would not

need to employ unusual mathematical talents, and through the bizarre ways in

which his genius flowered, as in his enthusiasm for collecting streetcar

transfers and in his proficiency with an adding machine. The article closes

with an account of an interview with Sidis at his present lodgings, 'a hall

bedroom of Boston's shabby south end.' The untidiness of his room, his

curious laugh, his manner of speech, and other personal habits are commented

upon at length, as is his present interest in the lore of the Okamakammessett

Indians. The subtitle is explained by the closing sentence, quoting Sidis

as saying 'with a grin' that it was strange, 'but, you know, I was born on

April Fool's Day.' Accompanying the biography is a small cartoon showing the

genius of eleven years lecturing to a group of astounded professors.

It is not contended that any of the matter printed is untrue. Nor is the

manner described as having 'a certain childlike charm.' But the article is

merciless in its dissection of intimate details of its subject's personal

life, and this in company with elaborate accounts of Sidis' passion for

privacy and the pitiable lengths to which he has gone in order to avoid

public scrutiny. The work poses great reader interest, for it is both amusing

and instructive; but it may be fairly described as a ruthless exposure of a

once public character, who has since sought and has *808 now been deprived of

the seclusion of private life.

The article of December 25, 1937, was a biographical sketch of another

former child prodigy, in the course of which William James Sidis and the

recent account of him were mentioned. The advertisement published in the

New York World-Telegram of August 13, 1937, read: 'Out Today. Harvard

Prodigy. Biography of the man who astonished Harvard at age 11. Where are

they now? by J. L. Manley. Page 22. The New Yorker.'

The complaint contains a general allegation, repeated for all the claims, of

publication by the defendant of The New Yorker, 'a weekly magazine of wide

circulation throughout the United States.' Then each separate 'cause'

contains an allegation that the defendant publicly circulated the articles or

caused them to be circulated in the particular states upon whose law that

cause is assumed to be founded. Circulation of the New York World-Telegram

advertisement is, however, alleged only with respect to the second 'cause,'

for asserted violation of New York law.

1. Under the first 'cause of action:' we are asked to declare that this

exposure transgresses upon plaintiff's right of privacy, as recognized in

California, Georgia, Kansas, Kentucky, and Missouri. [FN1] Each of these

states except California grants to the individual a common law right, and

California a constitutional right, [FN2] to be let alone to a certain extent.

The decisions have been carefully analyzed by the court below, [FN3] and we

need not examine them further. None of the cited rulings goes so far as to

prevent a newspaper or magazine from publishing the truth about a person,

however intimate, revealing, or harmful the truth may be. Nor are there any

decided cases that confer such a privilege upon the press. Under the mandate

of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114

A.L.R. 1487, we face the unenviable duty of determining the law of five

states on a broad and vital public issue which the courts of those states

have not even discussed. [FN4]

FN1. Green, The Right of Privacy, 27 Ill.L.Rev. 237, 248; Ragland, The Right

of Privacy, 17 Ky.L.J. 85, 110-113; Moreland, The Right of Privacy Today, 19

Ky.L.J. 101; Lisle, The Right of Privacy (A Contra View), 19 Ky.L.J. 137;

Larremore. The Law of Privacy, 12 Col.L.Rev. 693; Harper and McNeely,

(1938) Wis. L. Rev. 426, 458; 5 Mo.L.Rev. 343.

FN2. Melvin v. Reid, 112 Cal.App. 285, 297 P. 91. But cf. Matter v. Los

Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491.

FN3. Judge Goddard's decision is reported in 34 F.Supp. 19. The cases he

reviewed are Melvin v. Reid, supra note 2; Pavesich v. New England L.I. Co.,

122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, 106 Am.St.Rep. 104, 2 Ann.Cas. 561;

Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S.E. 194; Goodyear Tire &

Rubber Co. v. Vandergriff, 52 Ga.App. 662, 184 S.E. 452, Kunz v. Allen, 102

Kan. 883, 172 P. 532, L.R.A. 1918D, 1151; Brents v. Morgan, 221 Ky. 765, 299

S.W. 967, 55 A.L.R. 964; Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849, 42

L.R.A.,N.S. 386, Ann.Cas. 1914B, 374; Foster-Milburn Co. v. Chinn, 134 Ky.

424, 120 S.W. 364, 34 L.R.A., N.S., 1137, 135 Am.St.Rep. 417; Jones v. Herald

Post Co., 230 Ky. 227, 18 S.W.2D 46; Munden v. Harris, 153 Mo.App. 652, 134

S.W. 1076. See also Matter v. Los Angeles Examiner, supra note 2.

FN4. The cases most nearly in point are Jones v. Herald Post Co., supra note

3, and Matter v. Los Angeles Examiner, supra note 2. But both these

decisions involved news events of great current interest to the community.

All comment upon the right of privacy must stem from the famous article by

Warren and Brandeis on The Right of Privacy in 4 Harv.L.Rev. 193. The

learned authors of that paper were convinced that some limits ought to be

imposed upon the privilege of newspapers to publish truthful items of a

personal nature. 'The press is overstepping in every direction the obvious

bounds of propriety and of decency. Gossip is no longer the resource of the

idle and of the vicious, but has become a trade, which is pursued with

industry as well as effrontery. * * * The intensity and complexity of life,

attendant upon advancing civilization, have rendered necessary some retreat

from the world, and man, under the refining influence of culture, has become

more sensitive to publicity, so that solitude and privacy have become more

essential to the individual; but modern enterprise and invention have,

through invasions upon his privacy, subjected him to mental pain and

distress, far greater than could be inflicted by mere *809 bodily injury.'

Warren and Brandeis, supra at page 196.

Warren and Brandeis realized that the interest of the individual in privacy

must inevitably conflict with the interest of the public in news. Certain

public figures, they conceded, such as holders of public office, must

sacrifice their privacy and expose at least part of their lives to public

scrutiny as the price of the powers they attain. But even public figures

were not to be stripped bare. 'In general, then, the matters of which the

publication should be repressed may be described as those which concern the

private life, habits, acts, and legitimate connection with his fitness for a

public office. * * * Some things all men alike are entitled to keep from

popular curiosity, whether in public life or not, while others are only

private because the persons concerned have not assumed a position which makes

their doings legitimate matters of public investigation.' Warren and

Brandeis, supra at page 216.

It must be conceded that under the strict standards suggested by these

authors plaintiff's right of privacy has been invaded. Sidis today is

neither politician, public administrator, nor statesman. Even if he were,

some of the personal details revealed were of the sort that Warren and

Brandeis believed 'all men alike are entitled to keep from popular curiosity.'

[1] But despite eminent opinion to the contrary, [FN5] we are not yet

disposed to afford to all of the intimate details of private life an absolute

immunity from the prying of the press. Everyone will agree that at some

point the public interest in obtaining information becomes dominant over the

individual's desire for privacy. Warren and Brandeis were willing to lift

the veil somewhat in the case of public officers. We would go further,

though we are not yet prepared to say how far. At least we would permit

limited scrutiny of the 'private' life of any person who has achieved, or has

had thrust upon him, the questionable and indefinable status of a 'public

figure.' See Restatement, Torts, Sec. 867, comments c and d; Corliss v. E.

W. Walker Co., C.C. Mass., 57 F. 434, 31 L.R.A. 283; Id., C.C., 64 F. 280, 31

L.R.A. 283, Jeffries v. New York Evening Journal Pub. Co., 67 Misc. 570, 124

N.Y.S. 780; Jones v. Herald Post Co., supra; Meter v. Los Angeles Examiner,

supra; cf. Hillman v. Star Pub. Co., 64 Wash. 691, 117 P. 594, 35 L.R.A.,

N.S. 595, criticized in 10 Mich.L.Rev. 335.

FN5. Warren and Brandeis, supra at page 216; Pound, Interests of Personality,

28 Harv.L.Rev. 343, 363; Green, supra note 1, at page 248; Ragland, supra

note 1, at pages 110-113; Larremore, supra note 1, at page 698.

[2] William James Sidis was once a public figure. As a child prodigy, he

excited both admiration and curiosity. Of him great deeds were expected.

In 1910, he was a person about whom the newspapers might display a legitimate

intellectual interest, in the sense meant by Warren and Brandeis, as

distinguished from a trivial and unseemly curiosity. But the precise

motives of the press we regard as unimportant. And even if Sidis had

loathed public attention at that time, we think his uncommon achievements and

personality would have made the attention permissible. Since then Sidis has

cloaked himself in obscurity, but his subsequent history, containing as it

did the answer to the question of whether or not he had fulfilled his early

promise, was still a matter of public concern. The article in The New

Yorker sketched the life of an unusual personality, and it possessed

considerable popular news interest.

We express no comment on whether or not the news worthiness of the matter

printed will always constitute a complete defense. Revelations may be so

intimate and so unwarranted in view of the victim's position as to outrage

the community's notions of decency. But when focused upon public

characters, truthful comments upon dress, speech, habits, and the ordinary

aspects of personality will usually not transgress this line. Regrettably

or ...[text missing]