Appellant reporter, employed by a television station owned by
appellant broadcasting company, during a news report of a rape
case, broadcast the deceased rape victim's name, which he had
obtained from the indictments, which were public records available
for inspection. The victim's father, appellee, brought a damages
action against appellants in reliance on a Georgia statute making
it a misdemeanor to broadcast a rape victim's name, claiming that
his right to privacy had been invaded by the broadcast of his
daughter's name. The trial court, rejecting appellants' claims that
the broadcast was privileged under the First and Fourteenth
Amendments, held that the Georgia statute gave a civil remedy to
those injured by its violation and granted summary judgment for
appellee. On appeal, the Georgia Supreme Court initially held that,
while the trial court erred in construing the Georgia statute to
extend a cause of action for invasion of privacy, the complaint
stated a cause of action for common law invasion of privacy, and
that the First and Fourteenth Amendments did not, as a matter of
law, require judgment for appellants. On a motion for rehearing,
appellants contended that a rape victim's name was a matter of
public interest, and hence could be published with impunity, but
the Supreme Court denied the motion on the ground that the statute
declared a state policy that a rape victim's name was not a matter
of public concern, and sustained the statute as a legitimate
limitation on the First Amendment's freedom of expression.
Held:
1. This Court has jurisdiction over the appeal under 28 U.S.C. §
1257(2). Pp.
420 U. S.
476-487.
(a) The constitutionality of the Georgia statute was "drawn in
question" within the meaning of § 1257(2), since, when the Georgia
Supreme Court relied upon it as a declaration of state public
policy, the statute was drawn in question in a manner directly
bearing upon the merits of the action, and the decision upholding
its constitutional validity invokes this Court's appellate
jurisdiction. P.
420 U. S.
476.
(b) The Georgia Supreme Court's decision is a "final judgment or
decree" within the meaning of § 1257. It was plainly final on the
federal issue of whether the broadcasts were privileged
Page 420 U. S. 470
under the First and Fourteenth Amendments and is not subject to
further review in the state courts; and appellants would be liable
for damages if the elements of the state cause of action were
proved. Moreover, since the litigation could be terminated by this
Court's decision on the merits and a failure to decide the free
speech question now will leave the Georgia press operating in the
shadow of civil and criminal sanctions of a rule of law and statute
whose constitutionality is in serious doubt, this Court's reaching
the merits comports with its past pragmatic approach in determining
finality. Pp.
420 U. S.
476-487.
2. The State may not, consistently with the First and Fourteenth
Amendments, impose sanctions on the accurate publication of a rape
victim's name obtained from judicial records that are maintained in
connection with a public prosecution and that themselves are open
to public inspection. Here, under circumstances where appellant
reporter based his televised report upon notes taken during court
proceedings and obtained the rape victim's name from official court
documents open to public inspection, the protection of freedom of
the press provided by the First and Fourteenth Amendments bars
Georgia from making appellants' broadcast the basis of civil
liability in a cause of action for invasion of privacy that
penalizes pure expression -- the content of a publication. Pp.
420 U. S.
487-497.
(a) The commission of a crime, prosecutions resulting therefrom,
and judicial proceedings arising from the prosecutions are events
of legitimate concern to the public, and consequently fall within
the press' responsibility to report the operations of government.
Pp.
420 U. S.
492-493.
(b) The interests of privacy fade when the information involved
already appears on public record, especially when viewed in terms
of the First and Fourteenth Amendments and in light of the public
interest in a vigorous press. Pp.
420 U. S.
493-495.
231 Ga. 60,
200 S.E.2d
127, reversed.
WHITE, .J., delivered the opinion of the Court, in which
BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ., joined.
POWELL, J., filed a concurring opinion,
post, p.
420 U. S. 497.
BURGER, C.J., concurred in the judgment. DOUGLAS, J., filed an
opinion concurring in the judgment,
post, p.
420 U. S. 500.
REHNQUIST, J., filed a dissenting opinion,
post, p.
420 U. S.
501.
Page 420 U. S. 471
MR. JUSTICE WHITE delivered the opinion of the Court.
The issue before us in this case is whether, consistently with
the First and Fourteenth Amendments, a State may extend a cause of
action for damages for invasion of privacy caused by the
publication of the name of a deceased rape victim which was
publicly revealed in connection with the prosecution of the
crime.
I
In August, 1971, appellee's 17-year-old daughter was the victim
of a rape, and did not survive the incident. Six youths were soon
indicted for murder and rape. Although there was substantial press
coverage of the crime and of subsequent developments, the identity
of the victim was not disclosed pending trial, perhaps because of
Ga.Code Ann. § 26-9901 (1972), [
Footnote 1] which makes
Page 420 U. S. 472
it a misdemeanor to publish or broadcast the name or identity of
a rape victim. In April, 1972, some eight months later, the six
defendants appeared in court. Five pleaded guilty to rape or
attempted rape, the charge of murder having been dropped. The
guilty pleas were accepted by the court, and the trial of the
defendant pleading not guilty was set for a later date.
In the course of the proceedings that day, appellant Wassell,
[
Footnote 2] a reporter
covering the incident for his employer, learned the name of the
victim from an examination of the indictments which were made
available for his inspection in the courtroom. [
Footnote 3] That the name of the
Page 420 U. S. 473
victim appears in the indictments, and that the indictments were
public records available for inspection are not disputed. [
Footnote 4] Later that day, Wassell
broadcast over the facilities of station WSB-TV, a television
station owned by appellant Cox Broadcasting Corp., a news report
concerning
Page 420 U. S. 474
the court proceedings. The report named the victim of the crime
and was repeated the following day. [
Footnote 5]
In May, 1972, appellee brought an action for money damages
against appellants, relying on § 26-9901 and claiming that his
right to privacy had been invaded by the television broadcasts
giving the name of his deceased daughter. Appellants admitted the
broadcasts, but claimed that they were privileged under both state
law and the First and Fourteenth Amendments. The trial court,
rejecting appellants' constitutional claims and holding that the
Georgia statute gave a civil remedy to those injured by its
violation, granted summary judgment to appellee as to liability,
with the determination of. damages to await trial by jury.
On appeal, the Georgia Supreme Court, in its initial opinion,
held that the trial court had erred in construing 26-9901 to extend
a civil cause of action for invasion of privacy, and thus found it
unnecessary to consider the constitutionality of the statute. 231
Ga. 60,
200 S.E.2d 127
(1973). The court went on to rule, however, that the complaint
stated a cause of action "for the invasion of the appellee's right
of privacy, or for the tort of public disclosure" -- a "common law
tort exist[ing] in this jurisdiction without the help of the
statute that the trial judge in this case relied on."
Id.
at 62, 200 S.E.2d at 130. Although the privacy invaded was not that
of the deceased victim, the father was held to have stated a
Page 420 U. S. 475
claim for invasion of his own privacy by reason of the
publication of his daughter's name. The court explained, however,
that liability did not follow as a matter of law, and that summary
judgment was improper; whether the public disclosure of the name
actually invaded appellee's "zone of privacy," and if so, to what
extent, were issues to be determined by the trier of fact.
Also,
"in formulating such an issue for determination by the
factfinder, it is reasonable to require the appellee to prove that
the appellants invaded his privacy with willful or negligent
disregard for the fact that reasonable men would find the invasion
highly offensive."
Id. at 64, 200 S.E.2d at 131. The Georgia Supreme Court
did agree with the trial court, however, that the First and
Fourteenth Amendments did not, as a matter of law, require judgment
for appellants. The court concurred with the statement in
Briscoe v. Reader's Digest Assn., Inc., 4 Cal. 3d 529,
541, 483 P.2d 34, 42 (1971), that
"the rights guaranteed by the First Amendment do not require
total abrogation of the right to privacy. The goals sought by each
may be achieved with a minimum of intrusion upon the other."
Upon motion for rehearing, the Georgia court countered the
argument that the victim's name was a matter of public interest,
and could be published with impunity by relying on § 26-9901 as an
authoritative declaration of state policy that the name of a rape
victim was not a matter of public concern. This time the court felt
compelled to determine the constitutionality of the statute, and
sustained it as a "legitimate limitation on the right of freedom of
expression contained in the First Amendment." The court could
discern
"no public interest or general concern about the identity of the
victim of such a crime as will make the right to disclose the
identity of the victim rise to the level of First Amendment
protection."
231 Ga. at 68, 200 S.E.2d at 134.
Page 420 U. S. 476
We postponed decision as to our jurisdiction over this appeal to
the hearing on the merits. 415 U.S. 912 (1974). We conclude that
the Court has jurisdiction, and reverse the judgment of the Georgia
Supreme Court.
II
Appellants invoke the appellate jurisdiction of this Court under
28 U.S.C. § 1257(2), and, if that jurisdictional basis is found to
be absent, through a petition for certiorari under 28 U.S.C. §
2103. Two questions concerning our jurisdiction must be resolved:
(1) whether the constitutional validity of § 26-9901 was "drawn in
question," with the Georgia Supreme Court upholding its validity,
and (2) whether the decision from which this appeal has been taken
is a "[f]inal judgment or decree."
A
Appellants clearly raised the issue of the constitutionality of
§ 26-9901 in their motion for rehearing in the Georgia Supreme
Court. In denying that motion, that court held: "A majority of this
court does not consider this statute to be in conflict with the
First Amendment." 231 Ga. at 68, 200 S.E.2d at 134. Since the court
relied upon the statute as a declaration of the public policy of
Georgia that the disclosure of a rape victim's name was not to be
protected expression, the statute was drawn in question in a manner
directly bearing upon the merits of the action, and the decision in
favor of its constitutional validity invokes this Court's appellate
jurisdiction.
Cf. Garrity v. New Jersey, 385 U.
S. 493,
385 U. S.
495-496 (1967).
B
Since 1789, Congress has granted this Court appellate
jurisdiction with respect to state litigation only after the
highest state court in which judgment could be had has
Page 420 U. S. 477
rendered a "[f]inal judgment or decree." Title 28 U.S.C. § 1257
retains this limitation on our power to review cases coming from
state courts. The Court has noted that "[c]onsiderations of English
usage as well as those of judicial policy" would justify an
interpretation of the final judgment rule to preclude review
"where anything further remains to be determined by a State
court, no matter how dissociated from the only federal issue that
has finally been adjudicated by the highest court of the
State."
Radio Station WOW, Inc. v. Johnson, 326 U.
S. 120,
326 U. S. 124
(1945). But the Court there observed that the rule had not been
administered in such a mechanical fashion, and that there were
circumstances in which there has been "a departure from this
requirement of finality for federal appellate jurisdiction."
Ibid.
These circumstances were said to be "very few,"
ibid.;
but, as the cases have unfolded, the Court has recurringly
encountered situations in which the highest court of a State has
finally determined the federal issue present in a particular case,
but in which there are further proceedings in the lower state
courts to come. There are now at least four categories of such
cases in which the Court has treated the decision on the federal
issue as a final judgment for the purposes of 28 U.S.C. § 1257 and
has taken jurisdiction without awaiting the completion of the
additional proceedings anticipated in the lower state courts. In
most, if not all, of the cases in these categories, these
additional proceedings would not require the decision of other
federal questions that might also require review by the Court at a
later date, [
Footnote 6] and
immediate,
Page 420 U. S. 478
rather than delayed, review would be the best way to avoid "the
mischief of economic waste and of delayed justice,"
Radio
Station WOW, Inc. v. Johson, supra, at
326 U. S. 124,
as well as precipitate interference with state litigation.
[
Footnote 7] In the cases in
the first two categories considered below, the federal issue would
not be mooted or otherwise affected by the proceedings yet to be
had, because those proceedings have little substance, their outcome
is certain, or they are wholly unrelated to the federal question.
In the other two categories, however, the federal issue would be
mooted if the petitioner or appellant seeking to bring the action
here prevailed on the merits in the later state court proceeding,
but there is nevertheless
Page 420 U. S. 479
sufficient justification for immediate review of the federal
question finally determined in the state courts.
In the first category are those cases in which there are further
proceedings -- even entire trials -- yet to occur in the state
courts, but where, for one reason or another, the federal issue is
conclusive or the outcome of further proceedings preordained. In
these circumstances, because the case is, for all practical
purposes, concluded, the judgment of the state court on the federal
issue is deemed final. In
Mills v. Alabama, 384 U.
S. 214 (1966), for example, a demurrer to a criminal
complaint was sustained on federal constitutional grounds by a
state trial court. The State Supreme Court reversed, remanding for
jury trial. This Court took jurisdiction on the reasoning that the
appellant had no defense other than his federal claim, and could
not prevail at trial on the facts or any nonfederal ground. To
dismiss the appeal
"would not only be an inexcusable delay of the benefits Congress
intended to grant by providing for appeal to this Court, but it
would also result in a completely unnecessary waste of time and
energy in judicial systems already troubled by delays due to
congested dockets."
Id. at
384 U. S.
217-218 (footnote omitted). [
Footnote 8]
Page 420 U. S. 480
Second, there are cases such as
Radio Station WOW,
supra, and
Brady v. Maryland, 373 U. S.
83 (1963), in which the federal issue, finally decided
by the highest court in the State, will survive and require
decision regardless of the outcome of future state court
proceedings. In
Radio Station WOW, the Nebraska Supreme
Court directed the transfer of the properties of a federally
licensed radio station and ordered an accounting, rejecting the
claim that the transfer order would interfere with the federal
license. The federal issue was held reviewable here despite the
pending accounting on the
"presupposition . . . that the federal questions that could come
here have been adjudicated by the State court, and that the
accounting which remains to be taken could not remotely give rise
to a federal question . . . that may later come here. . . ."
326 U.S. at
326 U. S. 127.
The judgment rejecting the federal claim and directing the transfer
was deemed "dissociated from a provision for an accounting even
though that is decreed in the same order."
Id. at
326 U. S. 126.
Nothing that could happen in the course of the accounting, short of
settlement of the case, would foreclose or make unnecessary
decision on the federal question. Older cases in the Court had
reached the same result on similar facts.
Carondelet Canal
& Nav. Co. v. Louisiana, 233 U. S. 362
(1914);
Forgay v.
Conrad, 6 How. 201 (1848). In the latter case, the
Court, in an opinion by Mr. Chief Justice Taney, stated that the
Court had not understood the final judgment rule,
"in this strict and technical sense, but has given [it] a more
liberal, and, as we think, a more reasonable construction,
Page 420 U. S. 481
and one more consonant to the intention of the legislature."
Id. at
47 U. S. 203.
[
Footnote 9]
In the third category are those situations where the federal
claim has been finally decided, with further proceedings on the
merits in the state courts to come, but in which later review of
the federal issue cannot be had, whatever the ultimate outcome of
the case. Thus, in these cases, if the party seeking interim review
ultimately prevails on the merits, the federal issue will be
mooted; if he were to lose on the merits, however, the governing
state law would not permit him again to present his federal claims
for review. The Court has taken jurisdiction in these circumstances
prior to completion of the case in the state courts.
California
v. Stewart, 384 U. S. 436
(1966) (decided with
Miranda v. Arizona), epitomizes this
category. There, the state court reversed a conviction on federal
constitutional grounds and remanded for a new trial. Although the
State might have prevailed at trial, we granted its petition for
certiorari and affirmed, explaining that the state judgment was
"final," since an acquittal of the defendant at trial would
preclude, under state law, an appeal by the State.
Id. at
384 U. S. 498
n. 71.
A recent decision in this category is
North Dakota State
Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.
S. 156 (1973), in which the Pharmacy Board rejected an
application for a pharmacy operating permit relying on a state
statute specifying ownership requirements which the applicant did
not meet. The State Supreme
Page 420 U. S. 482
Court held the statute unconstitutional and remanded the matter
to the Board for further consideration of the application, freed
from the constraints of the ownership statute. The Board brought
the case here, claiming that the statute was constitutionally
acceptable under modern cases. After reviewing the various
circumstances under which the finality requirement has been deemed
satisfied despite the fact that litigation had not terminated in
the state courts, we entertained the case over claims that we had
no jurisdiction. The federal issue would not survive the remand,
whatever the result of the state administrative proceedings. The
Board might deny the license on state law grounds, thus foreclosing
the federal issue, and the Court also ascertained that, under state
law, the Board could not bring the federal issue here in the event
the applicant satisfied the requirements of state law except for
the invalidated ownership statute. Under these circumstances, the
issue was ripe for review. [
Footnote 10]
Lastly, there are those situations where the federal issue has
been finally decided in the state courts with further proceedings
pending in which the party seeking review here might prevail on the
merits on nonfederal grounds, thus rendering unnecessary review of
the federal issue by this Court, and where reversal of the state
court on the federal issue would be preclusive of any further
Page 420 U. S. 483
litigation on the relevant cause of action, rather than merely
controlling the nature and character of, or determining the
admissibility of evidence in, the state proceedings still to come.
In these circumstances, if a refusal immediately to review the
state court decision might seriously erode federal policy, the
Court has entertained and decided the federal issue, which itself
has been finally determined by the state courts for purposes of the
state litigation.
In
Construction Laborers v. Curry, 371 U.
S. 542 (1963), the state courts temporarily enjoined
labor union picketing over claims that the National Labor Relations
Board had exclusive jurisdiction of the controversy. The Court took
jurisdiction for two independent reasons. First, the power of the
state court to proceed in the face of the preemption claim was
deemed an issue separable from the merits and ripe for review in
this Court, particularly
"when postponing review would seriously erode the national labor
policy requiring the subject matter of respondents' cause to be
heard by the . . . Board, not by the state courts."
Id. at
371 U. S. 550.
Second, the Court was convinced that, in any event, the union had
no defense to the entry of a permanent injunction other than the
preemption claim that had already been ruled on in the state
courts. Hence, the case was, for all practical purposes, concluded
in the state tribunals.
In
Mercantile National Bank v. Langdeau, 371 U.
S. 555 (1963), two national banks were sued, along with
others, in the courts of Travis County, Tex. The claim asserted was
conspiracy to defraud an insurance company. The banks, as a
preliminary matter, asserted that a special federal venue statute
immunized them from suit in Travis County, and that they could
properly be sued only in another county. Although trial was still
to be had and the banks might well prevail on the merits, the
Court, relying on
Curry, entertained the issue as a
"separate
Page 420 U. S. 484
and independent matter, anterior to the merits and not enmeshed
in the factual and legal issues comprising the plaintiff's cause of
action."
Id. at
371 U. S. 558.
Moreover, it would serve the policy of the federal statute
"to determine now in which state court appellants may be tried,
rather than to subject them . . . to long and complex litigation
which may all be for naught if consideration of the preliminary
question of venue is postponed until the conclusion of the
proceedings."
Ibid.
Miami Herald Publishing Co. v. Tornillo, 418 U.
S. 241 (1974), is the latest case in this category.
[
Footnote 11] There, a
candidate for public office sued a newspaper for refusing,
allegedly contrary to a state statute, to carry his reply to the
paper's editorial critical of his qualifications. The trial court
held the act unconstitutional, denying both injunctive relief and
damages. The State Supreme Court reversed, sustaining the statute
against the challenge based upon the First and Fourteenth
Amendments and remanding the case for a trial and appropriate
relief, including damage. The newspaper brought the case here. We
sustained our jurisdiction, relying on the principles elaborated in
the North Dakota case and observing:
"Whichever way we were to decide on the merits, it
Page 420 U. S. 485
would be intolerable to leave unanswered, under these
circumstances, an important question of freedom of the press under
the First Amendment; an uneasy and unsettled constitutional posture
of § 104.38 could only further harm the operation of a free press.
Mills v. Alabama, 384 U. S. 214,
384 U. S.
221-222 (1966) (DOUGLAS, J., concurring).
See also
Organization for a Better Austin v. Keefe, 402 U. S.
415,
402 U. S. 418 n.
(1971)."
418 U.S. at
418 U. S. 247
n. 6. [
Footnote 12]
In light of the prior cases, we conclude that we have
jurisdiction to review the judgment of the Georgia Supreme Court
rejecting the challenge under the First and Fourteenth Amendments
to the state law authorizing damage suits against the press for
publishing the name of a rape victim whose identity is revealed in
the course of a public prosecution. The Georgia Supreme Court's
judgment is plainly final on the federal issue, and is not subject
to further review in the state courts. Appellants will be liable
for damages if the elements of the state cause of action are
proved. They may prevail at trial on nonfederal grounds, it is
true, but if the Georgia court erroneously upheld the statute,
there should be no trial at all. Moreover, even if appellants
prevailed at trial and made unnecessary further consideration of
the constitutional question, there would remain in effect the
unreviewed decision of the State Supreme Court that a civil action
for publishing the name of a rape victim disclosed in a public
judicial proceeding may go forward despite the First and Fourteenth
Amendments. Delaying final
Page 420 U. S. 486
decision of the First Amendment claim until after trial will
"leave unanswered . . . an important question of freedom of the
press under the First Amendment," "an uneasy and unsettled
constitutional posture [that] could only further harm the operation
of a free press."
Tornillo, supra, at
418 U. S. 247
n. 6. On the other hand, if we now hold that the First and
Fourteenth Amendments bar civil liability for broadcasting the
victim's name, this litigation ends. Given these factors -- that
the litigation could be terminated by our decision on the merits
[
Footnote 13] and that a
failure to decide the question now will leave the press in Georgia
operating in the shadow of the civil and criminal sanctions of a
rule of law and a statute the constitutionality of which is in
serious doubt -- we find that reaching the merits is consistent
with the pragmatic approach that we have followed in the past in
determining finality.
Page 420 U. S. 487
See Gillespie v. United States Steel Corp.,
379 U. S. 148
(1964);
Radio Station WOW, Inc. v. Johnson, 326 U.S. at
326 U. S. 124;
Mills v. Alabama, 384 U.S. at
384 U. S.
221-222 (DOUGLAS, J., concurring). [
Footnote 14]
III
Georgia stoutly defends both § 29901 and the State's common law
privacy action challenged here. Its claims are not without force,
for powerful arguments can be made, and have been made, that
however it may be ultimately defined, there s a zone of privacy
surrounding every individual, a zone within which the State may
protect him from intrusion by the press, with all its attendant
publicity. [
Footnote 15]
Indeed, the central thesis of the root article by Warren and
Brandeis, The Right to Privacy, 4 Harv.L.Rev.193, 196 (1890), was
that the press was overstepping its prerogatives by publishing
essentially private information, and that there should be a remedy
for the alleged abuses. [
Footnote 16]
Page 420 U. S. 488
More compellingly, the century has experienced a strong tide
running in favor of the so-called right of privacy. In 1967, we
noted that "[i]t has been said that a
right of privacy' has
been recognized at common law in 30 States plus the District of
Columbia and by statute in four States." Time, Inc. v.
Hill, 385 U. S. 374,
385 U. S. 383
n. 7. We there cited the 1964 edition of Prosser's Law of Torts.
The 1971 edition of that same source states that, "[i]n one form or
another, the right of privacy is by this time recognized and
accepted in all but a very few jurisdictions." W. Prosser, Law of
Torts 804 (4th ed.) (footnote omitted). Nor is it
irrelevant
Page 420 U. S. 489
here that the right of privacy is no recent arrival in the
jurisprudence of Georgia, which has embraced the right in some form
since 1905, when the Georgia Supreme Court decided the leading case
of
Pavesich v. New England Life Ins. Co., 122 Ga.190, 50
S.E. 68.
These are impressive credentials for a right of privacy,
[
Footnote 17] but we should
recognize that we do not have at issue here an action for the
invasion of privacy involving the appropriation of one's name or
photograph, a physical or other tangible intrusion into a private
area, or a publication of otherwise private information that is
also false, although perhaps not defamatory. The version of the
privacy tort now before US -- termed in Georgia "the tort of public
disclosure" -- 231 Ga. at 60, 200 S.E.2d at 13, is that in which
the plaintiff claims the right to be free from unwanted publicity
about his private affairs, which, although wholly true, would be
offensive to a person of ordinary sensibilities. Because the
gravamen of the claimed injury is the publication of information,
whether true or not, the dissemination of which is embarrassing or
otherwise painful to an individual, it is here that claims of
privacy most directly confront the constitutional freedoms of
speech and press. The face-off is apparent, and the appellants urge
upon us the broad holding that the press may not be made criminally
or civilly liable for publishing information that is neither false
nor misleading but absolutely accurate, however damaging it may be
to reputation or individual sensibilities.
It is true that, in defamation actions, where the protected
interest is personal reputation, the prevailing view is that truth
is a defense, [
Footnote 18]
and the message of
New York
Page 420 U. S. 490
Times Co. v. Sullivan, 376 U.
S. 254 (1964);
Garrison v. Louisiana,
379 U. S. 64
(1964);
Curtis Publishing Co. v. Butts, 388 U.
S. 130 (1967), and like cases is that the defense of
truth is constitutionally required where the subject of the
publication is a public official or public figure. What is more,
the defamed public official or public figure must prove not only
that the publication is false, but that it was knowingly so, or was
circulated with reckless disregard for its truth or falsity.
Similarly, where the interest at issue is privacy, rather than
reputation, and the right claimed is to be free from the
publication of false or misleading information about one's affairs,
the target of the publication must prove knowing or reckless
falsehood where the materials published, although assertedly
private, are "matters of public interest."
Time, Inc. v. Hill,
supra, at
385 U. S.
387-388. [
Footnote
19]
The Court has nevertheless carefully left open the question
whether the First and Fourteenth Amendments require that truth be
recognized as a defense in a defamation action brought by a private
person, as distinguished from a public official or public figure.
Garrison held that, where criticism is of a public
official and his conduct of public business,
"the interest in private reputation is overborne
Page 420 U. S. 491
by the larger public interest, secured by the Constitution, in
the dissemination of truth,"
379 U.S. at
379 U. S. 73
(footnote omitted), but recognized that
"different interests may be involved where purely private
libels, totally unrelated to public affairs are concerned;
therefore, nothing we say today is to be taken as intimating any
views as to the impact of the constitutional guarantees in the
discrete area of purely private libels."
Id. at
379 U. S. 72 n.
8. In similar fashion,
Time, Inc. v. Hill, supra,
expressly saved the question whether truthful publication of very
private matters unrelated to public affairs could be
constitutionally proscribed. 385 U.S. at
385 U. S. 383
n. 7.
Those precedents, as well as other considerations, counsel
similar caution here. In this sphere of collision between claims of
privacy and those of the free press, the interests on both sides
are plainly rooted in the traditions and significant concerns of
our society. Rather than address the broader question whether
truthful publications may ever be subjected to civil or criminal
liability consistently with the First and Fourteenth Amendments,
or, to put it another way, whether the State may ever define and
protect an area of privacy free from unwanted publicity in the
press, it is appropriate to focus on the narrower interface between
press and privacy that this case presents, namely, whether the
State may impose sanctions on the accurate publication of the name
of a rape victim obtained from public records -- more specifically,
from judicial records which are maintained in connection with a
public prosecution and which themselves are open to public
inspection. We are convinced that the State may not do so.
In the first place, in a society in which each individual has
but limited time and resources with which to observe at first hand
the operations of his government, he relies necessarily upon the
press to bring to him in convenient form the facts of those
operations. Great responsibility
Page 420 U. S. 492
is accordingly placed upon the news media to report fully and
accurately the proceedings of government, and official records and
documents open to the public are the basic data of governmental
operations. Without the information provided by the press, most of
us and many of our representatives would be unable to vote
intelligently or to register opinions on the administration of
government generally. With respect to judicial proceedings, in
particular, the function of the press serves to guarantee the
fairness of trials and to bring to bear the beneficial effects of
public scrutiny upon the administration of justice.
See
Sheppard v. Maxwell, 384 U. S. 333,
384 U. S. 350
(1966).
Appellee has claimed in this litigation that the efforts of the
press have infringed his right to privacy by broadcasting to the
world the fact that his daughter was a rape victim. The commission
of crime, prosecutions resulting from it, and judicial proceedings
arising from the prosecutions, however, are, without question,
events of legitimate concern to the public, and consequently fall
within the responsibility of the press to report the operations of
government.
The special protected nature of accurate reports of judicial
proceedings has repeatedly been recognized. This Court, in an
opinion written by MR. JUSTICE DOUGLAS, has said:
"A trial is a public event. What transpires in the court room is
public property. If a transcript of the court proceedings had been
published, we suppose none would claim that the judge could punish
the publisher for contempt. And we can see no difference though the
conduct of the attorneys, of the jury, or even of the judge
himself, may have reflected on the court.
Those who see and
hear what transpired can report it with impunity. There is no
special perquisite of the judiciary which enables
Page 420 U. S. 493
it, as distinguished from other institutions of democratic
government, to suppress, edit, or censor events which transpire in
proceedings before it."
Craig v. Harney, 331 U. S. 367,
331 U. S. 374
(1947) (emphasis added).
See also Sheppard v. Maxwell,
supra, at
384 U. S.
362-363;
Estes v. Texas, 381 U.
S. 532,
381 U. S.
541-542 (1965);
Pennekamp v. Florida,
328 U. S. 331
(1946);
Bridges v. California, 314 U.
S. 252 (1941).
The developing law surrounding the tort of invasion of privacy
recognizes a privilege in the press to report the events of
judicial proceedings. The Warren and Brandeis article,
supra, noted that the proposed new right would be limited
in the same manner as actions for libel and slander where such a
publication was a privileged communication:
"the right to privacy is not invaded by any publication made in
a court of justice . . . and (at least in many jurisdictions)
reports of any such proceedings would, in some measure, be accorded
a like privilege. [
Footnote
20]"
The Restatement of Torts, § 867, embraced an action for privacy.
[
Footnote 21] Tentative
Draft No. 13 of the Second Restatement of Torts, §§ 652A-652E,
divides the privacy tort into four branches, [
Footnote 22] and, with respect to the wrong of
giving unwanted publicity about private life, the commentary
Page 420 U. S. 494
to § 652D states:
"There is no liability when the defendant merely gives further
publicity to information about the plaintiff which is already
public. Thus, there is no liability for giving publicity to facts
about the plaintiff's life which are matters of public record. . .
. [
Footnote 23]"
The same is true of the separate tort of physically or otherwise
intruding upon the seclusion or private affairs of another. Section
652B, Comment , provides that
"there is no liability for the examination of a public record
concerning the plaintiff, or of documents which the plaintiff is
required to keep and make available for public inspection.
[
Footnote 24]"
According to this draft, ascertaining and publishing the
contents of public records are simply not within the reach of these
kinds of privacy actions. [
Footnote 25]
Thus, even the prevailing law of invasion of privacy generally
recognizes that the interests in privacy fade
Page 420 U. S. 495
when the information involved already appears on the public
record. The conclusion is compelling when viewed in terms of the
First and Fourteenth Amendments and in light of the public interest
in a vigorous press. The Georgia cause of action for invasion of
privacy through public disclosure of the name of a rape victim
imposes sanctions on pure expression -- the content of a
publication -- and not conduct or a combination of speech and
nonspeech elements that might otherwise be open to regulation or
prohibition.
See United States v. O'Brien, 391 U.
S. 367,
391 U. S.
376-377 (1968). The publication of truthful information
available on the public record contains none of the indicia of
those limited categories of expression, such as "fighting" words,
which
"are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social
interest in order and morality."
Chaplinsky v. New Hampshire, 315 U.
S. 568,
315 U. S. 572
(1942) (footnote omitted).
By placing the information in the public domain on official
court records, the State must be presumed to have concluded that
the public interest was thereby being served. Public records, by
their very nature, are of interest to those concerned with the
administration of government, and a public benefit is performed by
the reporting of the true contents of the records by the media. The
freedom of the press to publish that information appears to us to
be of critical importance to our type of government, in which the
citizenry is the final judge of the proper conduct of public
business. In preserving that form of government, the First and
Fourteenth Amendments command nothing less than that the States may
not impose sanctions on the publication of truthful information
contained in official court records open to public inspection.
Page 420 U. S. 496
We are reluctant to embark on a course that would make public
records generally available to the media but forbid their
publication if offensive to the sensibilities of the supposed
reasonable man. Such a rule would make it very difficult for the
media to inform citizens about the public business and yet stay
within the law. The rule would invite timidity and self-censorship
and very likely lead to the suppression of many items that would
otherwise be published and that should be made available to the
public. At the very least, the First and Fourteenth Amendments will
not allow exposing the press to liability for truthfully publishing
information released to the public in official court records. If
there are privacy interests to be protected in judicial
proceedings, the States must respond by means which avoid public
documentation or other exposure of private information. Their
political institutions must weigh the interests in privacy with the
interests of the public to know and of the press to publish.
[
Footnote 26] Once true
information is disclosed in public court documents open to public
inspection, the press cannot be sanctioned for publishing it. In
this instance, as in others, reliance must rest upon the judgment
of those who decide what to publish or broadcast.
See Miami
Herald Publishing Co. v. Tornillo, 418 U.S. at
418 U. S.
258.
Appellant Wassell based his televised report upon notes taken
during the court proceedings, and obtained the name of the victim
from the indictments handed to him at his request during a recess
in the hearing. Appellee has not contended that the name was
obtained in an improper fashion, or that it was not on an official
court document open to public inspection. Under these
circumstances,
Page 420 U. S. 497
the protection of freedom of the press provided by the First and
Fourteenth Amendments bars the State of Georgia from making
appellants' broadcast the basis of civil liability. [
Footnote 27]
Reversed.
MR. CHIEF JUSTICE BURGER concurs in the judgment.
[
Footnote 1]
"It shall be unlawful for any news media or any other person to
print and publish, broadcast, televise, or disseminate through any
other medium of public dissemination or cause to be printed and
published, broadcast, televised, or disseminated in any newspaper,
magazine, periodical or other publication published in this State
or through any radio or television broadcast originating in the
State the name or identity of any female who may have been raped or
upon whom an assault with intent to commit rape may have been made.
Any person or corporation violating the provisions of this section
shall, upon conviction, be punished as for a misdemeanor."
Three other States have similar statutes.
See
Fla.Stat.Ann. §§ 794.03, 794.04 (1965 and Supp. 1974-1975);
S.C.Code Ann. § 16-81 (1962); Wis.Stat.Ann. § 942.02 (1958). The
Wisconsin Supreme Court upheld the constitutionality of a
predecessor of § 942.02 in
State v. Evjue, 253 Wis. 146,
33 N.W.2d 305 (1948). The South Carolina statute was involved in
Nappier v. Jefferson Standard Life Insurance Co., 322 F.2d
502, 505 (CA4 1963), but no constitutional challenge to the statute
was made. In
Hunter v. Washington Post, 102 Daily
Washington L.Rptr. 1561 (1974), the District of Columbia Superior
Court denied the defendant's motion for judgment on the pleadings
based upon constitutional grounds in an action brought for invasion
of privacy resulting from the defendant's publication identifying
the plaintiff as a rape victim and giving her name, age, and
address.
[
Footnote 2]
Wassell was employed at the time in question as a news staff
reporter for WSB-TV, and had been so employed for the prior nine
years. His function was to investigate newsworthy stories and make
televised news reports. He was assigned the coverage of the trial
of the young men accused of the rape and murder of Cynthia Cohn on
the morning of April 10, 1972, the day it began, and had not been
involved with the story previously. He was present during the
entire hearing that day except for the first 30 minutes. App.
16-17.
[
Footnote 3]
Wassell has described the way in which he obtained the
information reported in the broadcast as follows:
"The information on which I prepared the said report was
obtained from several sources. First, by personally attending and
taking notes of the said trial and the subsequent transfer of four
of the six defendants to the Fulton County Jail, I obtained
personal knowledge of the events that transpired during the trial
of this action and the said transfer of the defendants. Such
personal observations and notes were the primary and almost
exclusive source of the information upon which the said news report
was based. Secondly, during a recess of the said trial, I
approached the clerk of the court, who was sitting directly in
front of the bench, and requested to see a copy of the indictments.
In open court, I was handed the indictments, both the murder and
the rape indictments, and was allowed to examine fully this
document. As is shown by the said indictments . . . the name of the
said Cynthia Cohn appears in clear type. Moreover, no attempt was
made by the clerk or anyone else to withhold the name and identity
of the victim from me or from anyone else and the said indictments
apparently were available for public inspection upon request."
Id. at 17-18.
[
Footnote 4]
The indictments are in pertinent part as follows:
"THE GRAND JURORS selected, chosen and sworn for the County of
Fulton . . . in the name and behalf of the citizens of Georgia,
charge and accuse [the defendants] with the offense of: --"
"
RAPE"
"for that said accused, in the County of Fulton and State of
Georgia, on the 18th day of August, 1971. did have carnal knowledge
of the person of Cynthia Leslie Cohn, a female, forcibly and
against her will. . . ."
Id. at 22-23.
"THE GRAND JURORS selected, chosen and sworn for the County of
Fulton . . . in the name and behalf of the citizens of Georgia,
charge and accuse [the defendants] with the offense of: --"
"
MURDER"
"for that said accused, in the County of Fulton and State of
Georgia, on the 18th day of August, 1971, did, while in the
commission of the offense of Rape, a felony, upon the person of
Cynthia Leslie Cohn, a female human being, cause her death by
causing her to suffocate. . . ."
Id. at 24-25.
[
Footnote 5]
The relevant portion of the transcript of the televised report
reads as follows:
"Six youths went on trial today for the murder-rape of a
teenaged girl."
"The six Sandy Springs High School boys were charged with murder
and rape in the death of seventeen-year-old Cynthia Cohn following
a drinking party last August 18th."
"The tragic death of the high school girl shocked the entire
Sandy Springs community. Today the six boys had their day in
court."
App. 19-20.
[
Footnote 6]
Eminent domain proceedings are of the type that may involve an
interlocutory decision as to a federal question with another
federal question to be decided later.
"For, in those cases, the federal constitutional question
embraces not only a taking, but a taking on payment of just
compensation. A state judgment is not final unless it covers both
aspects of that integral problem."
North Dakota State Board of Pharmacy v. Snyder's Drug
Stores, Inc., 414 U. S. 156,
414 U. S. 163
(1973).
See also Grays Harbor Co. v. Coats-Fordney Co.,
243 U. S. 251,
243 U. S. 256
(1917);
Radio Station WOW, Inc. v. Johnson, 326 U.
S. 120,
326 U. S. 127
(1945)
[
Footnote 7]
Gillespie v. United States Steel Corp., 379 U.
S. 148 (1964), arose in the federal courts and involved
the requirement of 28 U.S.C. § 1291 that judgments of district
courts be final if they are to be appealed to the courts of
appeals. In the course of deciding that the judgment of the
District Court in the case had been final, the Court indicated its
approach to finality requirements:
"And our cases long have recognized that whether a ruling is
'final' within the meaning of § 1291 is frequently so close a
question that decision of that issue either way can be supported
with equally forceful arguments, and that it is impossible to
devise a formula to resolve all marginal cases coming within what
might well be called the 'twilight zone' of finality. Because of
this difficulty, this Court has held that the requirement of
finality is to be given a 'practical, rather than a technical,
construction.'
Cohen v. Beneficial Industrial Loan
Corp., [
337 U.S.
541,
337 U. S. 546].
See also
Brown Shoe Co. v. United States, 370 U. S.
294,
370 U. S. 306;
Bronson
v. Radroad Co., 2 Black 524,
67 U. S.
531;
Forgay v. Conrad, 6 How.
201,
47 U. S. 203.
Dickinson
v. Petroleum Conversion Corp., 338 U. S.
507,
338 U. S. 511, pointed out
that, in deciding the question of finality, the most important
competing considerations are 'the inconvenience and costs of
piecemeal review, on the one hand, and the danger of denying
justice by delay, on the other.'"
379 U.S. at
379 U. S.
152-153.
[
Footnote 8]
Other cases from state courts where this Court's jurisdiction
was sustained for similar reasons include:
Organization for a
Better Austin v. Keefe, 402 U. S. 415,
402 U. S. 418
n. (1971);
Construction Laborers v. Curry, 371 U.
S. 542,
371 U. S.
550-551 (1963);
Pope v. Atlantic C.L. R. Co.,
345 U. S. 379,
345 U. S. 382
(1953);
Richfield Oil Corp. v. State Board, 329 U. S.
69,
329 U. S. 73-74
(1946). In the
Richfield case the Court said with respect
to finality:
"The designation given the judgment by state practice is not
controlling.
Department of Banking v. Pink, 317 U. S.
264,
317 U. S. 268. The question
is whether it can be said that 'there is nothing more to be
decided' (
Clark v. Williard, 292 U. S.
112,
292 U. S. 118), that there
has been 'an effective determination of the litigation.'
Market
Street Ry. Co. v. Railroad Commission, 324 U. S.
548,
324 U. S. 551;
see Radio
Station WOW v. Johnson, 326 U. S. 120,
326 U. S.
123-124. That question will be resolved not only by an
examination of the entire record (Clark v. Williard,
supra) but, where necessary, by resort to the local law to
determine what effect the judgment has under the state rules of
practice."
Id. at
329 U. S.
72.
[
Footnote 9]
In
Brady v. Maryland, 373 U. S. 83
(1963), the Maryland courts had ordered a new trial in a criminal
case, but on punishment only, and the petitioner asserted here that
he was entitled to a new trial on guilt as well. We entertained the
case, saying that the federal issue was separable, and would not be
mooted by the new trial on punishment ordered in the state courts.
Id. at
373 U. S. 85 n.
l.
[
Footnote 10]
Cohen v. Beneficial Industrial Loan Corp., 337 U.
S. 541 (1949), was a diversity action in the federal
courts in the course of which there arose the question of the
validity of a state statute requiring plaintiffs in stockholder
suits to post security for costs as a prerequisite to bringing the
action. The District Court held the state law inapplicable, the
Court of Appeals reversed, and this Court, after granting
certiorari, held that the issue of security for costs was separable
from and independent of the merits, and that, if review were to be
postponed until the termination of the litigation,
"it will be too late effectively to review the present order,
and the rights conferred by the statute, if it is applicable, will
have been lost, probably irreparably."
Id. at
337 U. S.
546.
[
Footnote 11]
Meanwhile
Hudson Distributors v. Eli Lilly,
377 U. S. 386
(1964), another case of this genre, had been decided. There, a
retailer sued to invalidate a state fair trade act as inconsistent
with the federal antitrust laws and not saved by a federal statute
authorizing state fair trade legislation under certain conditions.
The defendant manufacturer cross-petitioned for enforcement of the
state act against the plaintiff retailer. The trial court struck
down the statute, but a state appellate court reversed and remanded
for trial on the cross-petition. The Ohio Supreme Court affirmed
that decision. Relying on
Curry and
Mercantile
National Bank v. Langdeau, 371 U. S. 555
(1963), this Court found the state court judgment to be ripe for
review, although the retailer might prevail at the trial. 377 U.S.
at
377 U. S. 389
n.4.
[
Footnote 12]
The import of the Court's holding in
Tornillo is
underlined by its citation of the concurring opinion in
Mills
v. Alabama. There, MR. JUSTICE DOUGLAS, joined by MR. JUSTICE
BRENNAN, stated that, even if the appellant had a defense and might
prevail at trial, jurisdiction was properly noted in order to
foreclose unwarranted restrictions on the press should the state
court's constitutional judgment prove to be in error.
[
Footnote 13]
MR. JUSTICE REHNQUIST,
post at
420 U. S.
507-508, is correct in saying that this factor involves
consideration of the merits in determining jurisdiction. But it
does so only to the extent of determining that the issue is
substantial, and only in the context that, if the state court's
final decision on the federal issue is incorrect, federal law
forecloses further proceedings in the state court. That the
petitioner who protests against the state court's decision on the
federal question might prevail on the merits on nonfederal grounds
in the course of further proceedings anticipated in the state
court, and hence obviate later review of the federal issue here, is
not preclusive of our jurisdiction.
Curry, Langdeau, North
Dakota State Board of Pharmacy, California v. Stewart,
384 U. S. 436
(1966) (decided with
Miranda v. Arizona), and
Miami
Herald Publishing Co. v. Tornillo, 418 U.
S. 241 (1974), make this clear. In those cases, the
federal issue having been decided, arguably wrongly, and being
determinative of the litigation if decided the other way, the
finality rule was satisfied.
The author of the dissent, a member of the majority in
Tornillo, does not disavow that decision. He seeks only to
distinguish it by indicating that the First Amendment issue at
stake there was more important and pressing than the one here. This
seems to embrace the thesis of that case and of this one as far as
the approach to finality is concerned, even though the merits and
the avoidance doctrine are to some extent involved.
[
Footnote 14]
In finding that we have appellate jurisdiction, we also take
jurisdiction over any aspects of the case which would otherwise
fall solely within our certiorari jurisdiction.
See Flournoy v.
Wiener, 321 U. S. 253,
321 U. S. 263
(1944);
Prudential Insurance Co. v. Cheek, 259 U.
S. 530,
259 U. S. 547
(1922);
cf. Palmore v. United States, 411 U.
S. 389,
411 U. S. 397
n. 6 (1973);
Mishkin v. New York, 383 U.
S. 502,
383 U. S. 512
(1966).
[
Footnote 15]
See T Emerson, The System of Freedom of Expression
544-562 (1970); Konvitz, Privacy and the Law: A Philosophical
Prelude, 31 Law & Contemp. Prob 272 (1966); Bloustein, Privacy
as an Aspect of Human Dignity: An Answer to Dean Prosser, 39
N.Y.U.L.Rev. 962 (1964).
[
Footnote 16]
"Of the desirability -- indeed of the necessity -- of some such
protection [of the right of privacy], there can, it is believed, be
no doubt. 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. To satisfy a
prurient taste the details of sexual relations are spread broadcast
in the columns of the daily papers. To occupy the indolent, column
upon column is filled with idle gossip, which can only be procured
by intrusion upon the domestic circle. 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 bodily
injury. Nor is the harm wrought by such invasions confined to the
suffering of those who may be made the subjects of journalistic or
other enterprise. In this, as in other branches of commerce, the
supply creates the demand. Each crop of "
brk:
unseemly gossip, thus harvested, becomes the seed of more, and,
in direct proportion to its circulation, results in a lowering of
social standards and of morality. Even gossip apparently harmless,
when widely and persistently circulated, is potent for evil. It
both belittles and perverts. It belittles by inverting the relative
importance of things, thus dwarfing the thoughts and aspirations of
a people. When personal gossip attains the dignity of print, and
crowds the space available for matters of real interest to the
community, what wonder that the ignorant and thoughtless mistake
its relative importance. Easy of comprehension, appealing to that
weak side of human nature which is never wholly cast down by the
misfortunes and frailties of our neighbors, no one can be surprised
that it usurps the place of interest in brains capable of other
things. Triviality destroys at once robustness of thought and
delicacy of feeling. No enthusiasm can flourish, no generous
impulse can survive under its blighting influence.
[
Footnote 17]
See also Time, Inc. v. Hill, 385 U.
S. 374,
385 U. S. 404
(1967) (opinion of Harlan, J.);
id. at
385 U. S.
412-415 (Fortas, J., dissenting).
[
Footnote 18]
See Restatement (Second) of Torts § 582 (Tent.Draft No.
20, Apr. 25, 1974); W. Prosser, Law of Torts § 116 (4th ed.1971).
Under the common law, truth was not a complete defense to
prosecutions for criminal libel, although it was in civil actions.
Several jurisdictions in this country have provided, however, that
the defense of truth in civil actions requires a showing that the
publication was made for good motives or for justifiable ends.
See id. at 796-797.
[
Footnote 19]
In another "false light" invasion of privacy case before us this
Term,
Cantrell v. Forest City Publishing Co., 419 U.
S. 245,
419 U. S.
250-251 (1974), we observed that we had, in that
case,
"no occasion to consider whether a State may constitutionally
apply a more relaxed standard of liability for a publisher or
broadcaster of false statements injurious to a private individual
under a false light theory of invasion of privacy, or whether the
constitutional standard announced in
Time, Inc. v. Hill
applies to all false light cases.
Cf. Gertz v. Robert Welch,
Inc., 418 U. S. 323."
[
Footnote 20]
4 Harv.L.Rev. at 216-217.
[
Footnote 21]
Restatement of Torts § 867 (1939).
[
Footnote 22]
Restatement (Second) of Torts §§ 652A-652E (Tent.Draft No. 13,
Apr. 27, 1967). The four branches are: unreasonable intrusion upon
the seclusion of another (§ 652B), appropriation of the other's
name or likeness (§ 652C), unreasonable publicity given to the
other's private life (§ 652D), and publicity which unreasonably
places the other in a false light before the public (§ 652E).
See § 652A. The same categorization is suggested in W.
Prosser, Law of Torts § 117 (4th ed.1971); Prosser, Privacy, 48
Calif.L.Rev. 383 (1960).
[
Footnote 23]
Restatement (Second) of Torts,
supra, § 652D, Comment
c, at 114.
[
Footnote 24]
Id. § 652B, Comment
c, at 104.
[
Footnote 25]
See also W. Prosser, Law of Torts,
supra, at
810-811. For decisions emphasizing as a defense to actions claiming
invasion of privacy the fact that the information in question was
derived from official records available to the public,
see
Hubbard v. Journal Publishing Co., 69 N.M. 473,
368 P.2d 147
(1962) (information regarding sexual assault by a boy upon his
younger sister derived from official juvenile court records open to
public inspection);
Edmiston v. Time, Inc., 257 F. Supp.
22 (SDNY 1966) (fair and true report of court opinion);
Bell v. Courier-Journal & Louisville Times
Co., 402
S.W.2d 84 (Ky.1966);
Lamont v. Commissioner of Motor
Vehicles, 269 F.
Supp. 880 (SDNY),
aff'd, 386 F.2d 449 (CA2 1967),
cert. denied, 391 U.S. 915 (1968);
Frith v. Associated
Press, 176 F.
Supp. 671 (EDSC 1959);
Meetze v. Associated Press, 230
S.C. 330,
95 S.E.2d
606 (1956);
Thompson v. Curtis Publishing Co., 193
F.2d 953 (CA3 1952);
Garner v. Triangle
Publications, 97 F. Supp.
546 (SDNY 1951);
Berg v. Minneapolis Star & Tribune
Co., 79 F. Supp.
957 (Minn.1948).
[
Footnote 26]
We mean to imply nothing about any constitutional questions
which might arise from a state policy not allowing access by the
public and press to various kinds of official records, such as
records of juvenile court proceedings.
[
Footnote 27]
Appellants have contended that whether they derived the
information in question from public records or, instead, through
their own investigation, the First and Fourteenth Amendments bar
any sanctions from being imposed by the State because of the
publication. Because appellants have prevailed on more limited
grounds, we need not address this broader challenge to the validity
of § 26-9901 and of Georgia's right of action for public
disclosure.
MR. JUSTICE POWELL, concurring.
I join in the Court's opinion, as I agree with the holding and
most of its supporting rationale. [
Footnote 2/1] My understanding of some of our decisions
concerning the law of defamation, however, differs from that
expressed in today's opinion. Accordingly, I think it appropriate
to state separately my views.
I am in entire accord with the Court's determination that the
First Amendment proscribes imposition of civil liability in a
privacy action predicated on the truthful publication of matters
contained in open judicial records. But my impression of the role
of truth in defamation actions brought by private citizens differs
from the Court's. The Court identifies as an "open" question the
issue of
"whether the First and Fourteenth Amendments require that truth
be recognized as a defense in a defamation action brought by a
private person, as distinguished
Page 420 U. S. 498
from a public official or a public figure."
Ante at
420 U.S.
490. In my view, our recent decision in
Gertz v. Robert
Welch, Inc., 418 U. S. 323
(1974), largely resolves that issue.
Gertz is the most recent of a line of cases in which
this Court has sought to resolve the conflict between the State's
desire to protect the reputational interests of its citizens and
the competing commands of the First Amendment. In each of the many
defamation actions considered in the 10 years following
New
York Times Co. v. Sullivan, 376 U. S. 254
(1964), state law provided that truth was a defense to the action.
[
Footnote 2/2] Today's opinion
reiterates what we previously have recognized,
see Garrison v.
Louisiana, 379 U. S. 64,
379 U. S. 74
(1964) -- that the defense of truth is constitutionally required
when the subject of the alleged defamation is a public figure.
Ante at
420 U. S.
489-490. Indeed, even if not explicitly recognized, this
determination is implicit in the Court's articulation of a standard
of recovery that rests on knowing or
Page 420 U. S. 499
reckless disregard of the truth. I think that the constitutional
necessity of recognizing a defense of truth is equally implicit in
our statement of the permissible standard of liability for the
publication or broadcast of defamatory statements whose substance
makes apparent the substantial danger of injury to the reputation
of a private citizen.
In
Gertz, we held that the First Amendment prohibits
the States from imposing strict liability for media publication of
allegedly false statements that are claimed to defame a private
individual. While providing the required "breathing space" for
First Amendment freedoms, the
Gertz standard affords the
States substantial latitude in compensating private individuals for
wrongful injury to reputation. [
Footnote 2/3]
"[S]o long as they do not impose liability without fault, the
States may define for themselves the appropriate standard of
liability for a publisher or broadcaster of defamatory falsehood
injurious to a private individual."
418 U.S. at
418 U. S. 347.
The requirement that the state standard of liability be related to
the defendant's failure to avoid publication of "defamatory
falsehood" limits the grounds on which a normal action for
defamation can be brought. It is fair to say that, if the
statements are true, the standard contemplated by
Gertz
cannot be satisfied.
In
Gertz, we recognized the need to establish a broad
rule of general applicability, acknowledging that such an
Page 420 U. S. 500
approach necessarily requires treating alike cases that involve
differences, as well as similarities.
Id. at
418 U. S.
343-344. Of course, no rule of law is infinitely
elastic. In some instances, State actions that are denominated
actions in defamation may, in fact, seek to protect citizens from
injuries that are quite different from the wrongful damage to
reputation flowing from false statements of fact. In such cases,
the Constitution may permit a different balance to be struck. And,
as today's opinion properly recognizes, causes of action grounded
in a State's desire to protect privacy generally implicate
interests that are distinct from those protected by defamation
actions. But in cases in which the interests sought to be protected
are similar to those considered in
Gertz, I view that
opinion as requiring that the truth be recognized as a complete
defense.
[
Footnote 2/1]
At the outset, I note my agreement that
Miami Herald
Publishing Co. v. Tornillo, 418 U. S. 241
(1974), supports the conclusion that the issue presented in this
appeal is final for review. 28 U.S.C. § 1257
[
Footnote 2/2]
In
Time, Inc. v. Hill, 385 U.
S. 374 (1967), the Court considered a state cause of
action that afforded protection against unwanted publicity, rather
than damage to reputation through the publication of false
statements of fact. In such actions, however, the State also
recognized that truth was an absolute defense against liability for
publication of reports concerning newsworthy people or events.
Id. at
385 U. S. 383.
The Court's abandonment of the "matter of general or public
interest" standard as the determinative factor for deciding whether
to apply the
New York Times malice standard to defamation
litigation brought by private individuals,
Gertz v. Robert
Welch, Inc., 418 U. S. 323,
418 U. S. 346
(1974);
see also Rosenbloom v. Metromedia, Inc.,
403 U. S. 29,
403 U. S. 79
(1971) (MARSHALL, J., dissenting), calls into question the
conceptual basis of
Time, Inc. v. Hill. In neither
Gertz nor our more recent decision in
Cantrell v.
Forest City Publishing Co., 419 U. S. 245
(1974), however, have we been called upon to determine whether a
State may constitutionally apply a more relaxed standard of
liability under a false light theory of invasion of privacy.
See id. at
419 U. S.
250-251;
Gertz, supra, at
418 U. S. 348;
ante at
420 U.S.
490 n. 19.
[
Footnote 2/3]
Our recent opinions dealing with First Amendment limitations on
state defamation actions all center around the common premise that,
while the Constitution requires that false ideas be corrected only
by the competitive impact of other ideas, the First Amendment
affords no constitutional protection for false statements of fact.
See Gertz, supra, at
418 U. S.
339-340. Beginning with this common assumption, the
decisions of this Court have undertaken to identify a standard of
care with respect to the truth of the published facts that will
afford the required "breathing space" for First Amendment
values.
MR. JUSTICE DOUGLAS, concurring in the judgment.
I agree that the state judgment is "final," and I also agree in
the reversal of the Georgia court.
* On the
Page 420 U. S. 501
merits, the case for me is on all fours with
New Jersey
State Lottery Comm'n v. United States, 491 F.2d 219 (CA3
1974),
vacated and remanded, ante, p. 371. For the reasons
I stated in my dissent from our disposition of that case, there is
no power on the part of government to suppress or penalize the
publication of "news of the day."
* While I join in the narrow result reached by the Court, I
write separately to emphasize that I would ground that result upon
a far broader proposition, namely, that the First Amendment, made
applicable to the States through the Fourteenth, prohibits the use
of state law "to impose damages for merely discussing public
affairs. . . ."
New York Times Co. v. Sullivan,
376 U. S. 254,
376 U. S. 295
(1964) (Black, J., concurring).
See also Cantrell v. Forest
City Publishing Co., 419 U. S. 245,
419 U. S. 254
(1974) (DOUGLAS, J., dissenting);
Gertz v. Robert Welch,
Inc., 418 U. S. 323,
418 U. S. 355
(1974) (DOUGLAS, J., dissenting);
Time, Inc. v. Hill,
385 U. S. 374,
385 U. S. 398
(1967) (Black, J., concurring);
id. at
385 U. S. 401
(DOUGLAS, J., concurring);
Garrison v. Louisiana,
379 U. S. 64,
379 U. S. 80
(1964) (DOUGLAS, J., concurring). In this context, of course,
"public affairs" must be broadly construed -- indeed, the term may
be said to embrace "any matter of sufficient general interest to
prompt media coverage. . . ."
Gertz v. Robert Welch, Inc.,
supra, at
418 U. S. 357
n. 6 (DOUGLAS, J., dissenting). By its now-familiar process of
balancing and accommodating First Amendment freedoms with state or
individual interests, the Court raises a specter of liability which
must inevitably induce self-censorship by the media, thereby
inhibiting the rough-and-tumble discourse which the First Amendment
so clearly protects.
MR. JUSTICE REHNQUIST, dissenting.
Because I am of the opinion that the decision which is the
subject of this appeal is not a "final" judgment or decree, as that
term is used in 28 U.S.C. § 1257, I would dismiss his appeal for
want of jurisdiction.
Radio Station WOW, Inc. v. Johnson, 326 U.
S. 120 (1945), established that, in a "very few"
circumstances, review of state court decisions could be had in this
Court even though something "further remain[ed] to be determined by
a State court."
Id. at
326 U. S. 124.
Over the years, however, and despite vigorous protest by Mr.
Justice Harlan, [
Footnote 3/1] this
Court has steadily discovered new exceptions to the finality
requirement, such that they can hardly any longer be described as
"very few." Whatever may be the unexpressed reasons for this
process of expansion,
see, e.g., Hudson Distributors v. Eli
Lilly, 377 U. S. 386,
377 U. S. 401
(1964) (Harlan, J., dissenting), it has frequently been the subject
of no more formal an express explanation than cursory citations to
preceding cases in
Page 420 U. S. 502
the line. Especially is this true of cases in which the Court,
as it does today, relies on
Construction Laborers v.
Curry, 371 U. S. 542
(1963). [
Footnote 3/2] Although the
Court's opinion today does accord detailed consideration to this
problem, I do not believe that the reasons it expresses can support
its result.
I
The Court has taken what it terms a "pragmatic" approach to the
finality problem presented in this ease. In so doing, it has relied
heavily on
Gillespie v. United States Steel Corp.,
379 U. S. 148
(194). As the Court acknowledges,
ante at
420 U. S. 478
n. 7,
Gillespie involved 28 U.S.C. § 1291, which restricts
the appellate jurisdiction of the federal courts of appeals to
"final decisions of the district court." Although acknowledging
this distinction, the Court accords it no importance, and adopts
Gillespie's approach without any consideration of whether
the finality requirement for this Court's jurisdiction over a
"judgment or decree" of a state court is grounded on more serious
concerns than is the limitation of court of appeals jurisdiction to
final "decisions" of the district courts. [
Footnote 3/3] I believe that the underlying concerns are
different,
Page 420 U. S. 503
and that the difference counsels a more restrictive approach
when § 1257 finality is at issue.
According to
Gillespie, the finality requirement is
imposed as a matter of minimizing "the inconvenience and costs of
piecemeal review." This proposition is undoubtedly sound so long as
one is considering the administration of the federal court system.
Were judicial efficiency the only interest at stake, there would be
less inclination to challenge the Court's resolution in this case,
although, as discussed below, I have serious reservations that the
standards the Court has formulated are effective for achieving even
this single goal. The case before us, however, is an appeal from a
state court, and this fact introduces additional interests which
must be accommodated in fashioning any exception to the literal
application of the finality requirement. I consider § 1257 finality
to be but one of a number of congressional provisions reflecting
concern that uncontrolled federal judicial interference with state
administrative and judicial functions would have untoward
consequences for our federal system. [
Footnote 3/4] This is by no means a novel view of the §
1257 finality requirement. In
Radio Station WOW, Inc. v.
Johnson, 326 U.S. at
326 U. S. 124,
Mr. Justice Frankfurter's
Page 420 U. S. 504
opinion for the Court explained the finality requirement as
follows:
"This requirement has the support of considerations generally
applicable to good judicial administration. It avoids the mischief
of economic waste and of delayed justice. Only in very few
situations, where intermediate rulings may carry serious public
consequences, has there been a departure from this requirement of
finality for federal appellate jurisdiction. This prerequisite to
review derives added force when the jurisdiction of this Court is
invoked to upset the decision of a State court. Here we are in the
realm of potential conflict between the courts of two different
governments. And so, ever since 1789, Congress has granted this
Court the power to intervene in State litigation only after 'the
highest court of a State in which a decision in the suit could be
had' has rendered a 'final judgment or decree.' § 237 of the
Judicial Code, 28 U.S.C. § 344(a).
This requirement is not one
of those technicalities to be easily scorned. It is an important
factor in the smooth working of our federal system."
(Emphasis added.) In
Republic Gas Co. v. Oklahoma,
334 U. S. 62,
334 U. S. 67
(1948), Mr. Justice Frankfurter, speaking for the Court, again
expressed this view:
"This prerequisite for the exercise of the appellate powers of
this Court is especially pertinent when a constitutional barrier is
asserted against a State court's decision on matters peculiarly of
local concern. Close observance of this limitation upon the Court
is not regard for a strangling technicality. History bears ample
testimony that it is an important factor in securing harmonious
State-federal relations. "
Page 420 U. S. 505
That comity and federalism are significant elements of § 1257
finality has been recognized by other members of the Court as well,
perhaps most notably by Mr. Justice Harlan.
See, e.g., Hudson
Distributors v. Eli Lilly, 377 U.S. at
377 U. S.
397-398 (dissenting);
Mercantile National Bank v.
Langdeau, 371 U. S. 555,
371 U. S. 572
(1963) (dissenting). In the latter dissent, he argued that one
basis of the finality rule was that it foreclosed
"this Court from passing on constitutional issues that may be
dissipated by the final outcome of a case, thus helping to keep to
a minimum undesirable federal-state conflicts."
One need cast no doubt on the Court's decision in such cases as
Langdeau to recognize that Mr. Justice Harlan was focusing
on a consideration which should be of significance in the Court's
disposition of this case.
"Harmonious state-federal relations" are no less important today
than when Mr. Justice Frankfurter penned
Radio Station WOW
and
Republic Gas Co. Indeed, we have in recent years
emphasized and reemphasized the importance of comity and federalism
in dealing with a related problem, that of district court
interference with ongoing state judicial proceedings.
See
Younger v. Harris, 401 U. S. 37
(1971);
Samuels v. Mackell, 401 U. S.
66 (1971). Because these concerns are important, and
because they provide "added force" to § 1257's finality
requirement, I believe that the Court has erred by simply importing
the approach of cases in which the only concern is efficient
judicial administration.
II
But quite apart from the considerations of federalism which
counsel against an expansive reading of our jurisdiction under §
1257, the Court's holding today enunciates a virtually formless
exception to the finality requirement, one which differs in kind
from those previously carved out. By contrast,
Construction
Laborers v. Curry, supra,
Page 420 U. S. 506
and
Mercantile National Bank v. Langdeau, supra, are
based on the understandable principle that, where the proper forum
for trying the issue joined in the state courts depends on the
resolution of the federal question raised on appeal, sound judicial
administration requires that such a question be decided by this
Court, if it is to be decided at all, sooner, rather than later in
the course of the litigation.
Organization for a Better Austin
v. Keefe, 402 U. S. 415
(1971), and
Mills v. Alabama, 384 U.
S. 214 (1966), rest on the premise that, where, as a
practical matter, the state litigation has been concluded by the
decision of the State's highest court, the fact that, in terms of
state procedure the ruling is interlocutory should not bar a
determination by this Court of the merits of the federal
question.
Still other exceptions, as noted in the Court's opinion, have
been made where the federal question decided by the highest court
of the State is bound to survive and be presented for decision here
regardless of the outcome of future state court proceedings,
Radio Station WOW, supra; Brady v. Maryland, 373 U. S.
83 (1963), and for the situation in which later review
of the federal issue cannot be had, whatever the ultimate outcome
of the subsequent proceedings directed by the highest court of the
State,
California v. Stewart, 384 U.
S. 436 (1966) (decided with
Miranda v.
Arizona);
North Dakota State Board of Pharamacy v.
Snyder's Drug Stores, Inc., 414 U. S. 156
(1973). While the totality of these exceptions certainly indicates
that the Court has been willing to impart to the language "final
judgment or decree" a great deal of flexibility, each of them is
arguably consistent with the intent of Congress in enacting § 1257,
if not with the language it used, and each of them is relatively
workable in practice.
To those established exceptions is now added one so
Page 420 U. S. 507
formless that it cannot be paraphrased, but instead must be
quoted:
"Given these factors -- that the litigation could be terminated
by our decision on the merits and that a failure to decide the
question now will leave the press in Georgia operating in the
shadow of the civil and criminal sanctions of a rule of law and a
statute the constitutionality of which is in serious doubt -- we
find that reaching the merits is consistent with the pragmatic
approach that we have followed in the past in determining
finality."
Ante at
420 U. S.
486.
There are a number of difficulties with this test. One of them
is the Court's willingness to look to the merits. It is not clear
from the Court's opinion, however, exactly how great a look at the
merits we are to take. On the one hand, the Court emphasizes that,
if we reverse the Supreme Court of Georgia, the litigation will
end,
ante at
420 U. S.
485-486, and it refers to cases in which the federal
issue has been decided "arguably wrongly."
Ante at
420 U. S. 486
n. 13. On the other hand, it claims to look to the merits "only to
the extent of determining that the issue is substantial."
Ibid. If the latter is all the Court means, then the
inquiry is no more extensive than is involved when we determine
whether a case is appropriate for plenary consideration; but if no
more is meant, our decision is just as likely to be a costly
intermediate step in the litigation as it is to be the concluding
event. If, on the other hand, the Court really intends its doctrine
to reach only so far as cases in which our decision in all
probability will terminate the litigation, then the Court is
reversing the traditional sequence of judicial decisionmaking.
Heretofore, it has generally been thought that a court first
assumed jurisdiction of a case, and then went on to decide the
merits of the questions it presented. But henceforth, in
determining
Page 420 U. S. 508
our own jurisdiction, we may be obliged to determine whether or
not we agree with the merits of the decision of the highest court
of a State.
Yet another difficulty with the Court's formulation is the
problem of transposing to any other case the requirement that
"failure to decide the question now will leave the press in
Georgia operating in the shadow of the civil and criminal sanctions
of a rule of law and a statute the constitutionality of which is in
serious doubt."
Ante at
420 U. S. 486.
Assuming that we are to make this determination of "serious doubt"
at the time we note probable jurisdiction of such an appeal, is it
enough that the highest court of the State has ruled against any
federal constitutional claim? If that is the case, then because §
1257, by other language, imposes that requirement, we will have
completely read out of the statute the limitation of our
jurisdiction to a "final judgment or decree." Perhaps the Court's
new standard for finality is limited to cases in which a First
Amendment freedom is at issue. The language used by Congress,
however, certainly provides no basis for preferring the First
Amendment, as incorporated by the Fourteenth Amendment, to the
various other Amendments which are likewise "incorporated," or
indeed for preferring any of the "incorporated" Amendments over the
due process and equal protection provisions which are embodied
literally in the Fourteenth Amendment.
Another problem is that, in applying the second prong of its
test, the Court has not engaged in any independent inquiry as to
the consequences of permitting the decision of the Supreme Court of
Georgia to remain undisturbed pending final state court resolution
of the case. This suggests that, in order to invoke the benefit of
today's rule, the "shadow" in which an appellant must stand need be
neither deep nor wide. In this case, nothing more is
Page 420 U. S. 509
at issue than the right to report the name of the victim of a
rape. No hindrance of any sort has been imposed on reporting the
fact of a rape or the circumstances surrounding it. Yet the Court
unquestioningly places this issue on a par with the core First
Amendment interest involved in
Miami Herald Publishing Co. v.
Tornillo, 418 U. S. 241
(1974), and
Mills v. Alabama, supra, that of protecting
the press in its role of providing uninhibited political discourse.
[
Footnote 3/5]
But the greatest difficulty with the test enunciated today is
that it totally abandons the principle that constitutional issues
are too important to be decided save when absolutely necessary, and
are to be avoided if there are grounds for decision of lesser
dimension. [
Footnote 3/6] The long
line of cases which established this rule makes clear that it is a
principle primarily designed not to benefit the lower courts or
state-federal relations, but rather to safeguard this Court's own
process of constitutional adjudication.
"Considerations of propriety, as well as long-established
practice, demand that we refrain from passing upon the
constitutionality of an act of Congress unless obliged to do so in
the proper performance of our judicial function, when the question
is raised
Page 420 U. S. 510
by a party whose interests entitle him to raise it."
Blair v. United States, 250 U.
S. 273,
250 U. S. 279
(1919).
"The Court will not 'anticipate a question of constitutional law
in advance of the necessity of deciding it.'
Liverpool, N.Y.
& P. S.S. Co. v. Emigration Commissioners, 113 U. S.
33,
113 U. S. 39;
Abrams v.
Van Schaick, 293 U. S. 188;
Wilshire Oil
Co. v. United States, 295 U. S. 100. 'It is not the
habit of the Court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.'
Burton
v. United States, 196 U. S. 283,
196 U. S.
295."
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S.
346-347 (1936) (Brandeis, J., concurring). In this case,
there has yet to be an adjudication of liability against
appellants, and, unlike the appellant in
Mills v. Alabama,
they do not concede that they have no nonfederal defenses.
Nonetheless, the Court rules on their constitutional defense. Far
from eschewing a constitutional holding in advance of the necessity
for one, the Court construes § 1257 so that it may virtually rush
out and meet the prospective constitutional litigant as he
approaches our doors.
III
This Court is obliged to make preliminary determinations of its
jurisdiction at the time it votes to note probable jurisdiction. At
that stage of the proceedings, prior to briefing on the merits or
oral argument, such determinations must of necessity be based on
relatively cursory acquaintance with the record of the proceedings
below. The need for an understandable and workable application of a
jurisdictional provision such as § 1257 is therefore far greater
than for a similar interpretation of statutes dealing with
substantive law. [
Footnote 3/7] We,
of course, retain
Page 420 U. S. 511
the authority to dismiss a case for want of a final judgment
after having studied briefs on the merits and having heard oral
argument, but I can recall not a single instance of such a
disposition during the last three Terms of the Court. While in
theory this may be explained by saying that, during these Terms, we
have never accorded plenary consideration to a § 1257 case which
was not a "final judgment or decree," I would guess it just as
accurate to say that, after the Court has studied briefs and heard
oral argument, it has an understandable tendency to proceed to a
decision on the merits in preference to dismissing for want of
jurisdiction. It is thus especially disturbing that the rule of
this case, unlike the more workable and straightforward exceptions
which the Court has previously formulated, will seriously compound
the already difficult task of accurately determining, at a
preliminary stage, whether an appeal from a state court judgment is
a "final judgment or decree."
A further aspect of the difficulties which the Court is
generating is illustrated by a petition for certiorari recently
filed in this Court,
Time, Inc. v. Firestone, No. 74-944.
The case was twice before the Florida Supreme Court. That court's
first decision was rendered in December, 1972; it rejected Time's
First Amendment defense to a libel action and remanded for further
proceedings on state law issues. The second decision was rendered
in 1974, and dealt with the state law issues litigated on remand.
Before this Court, Time seeks review of the First Amendment defense
rejected by the Florida Supreme Court in December, 1972. Under the
Court's decision today, one could conclude that the 1972 judgment
was itself a final decision from which review might
Page 420 U. S. 512
have been had. If it was, then petitioner Time is confronted by
28 U.S.C. § 2101(c), which restricts this Court's jurisdiction over
state civil cases to those in which review is sought within 90 days
of the entry of a reviewable judgment.
I in no way suggest either my own or the Court's views on our
jurisdiction over
Time, Inc. v. Firestone. This example is
simply illustrative of the difficulties which today's decision
poses not only for this Court, but also for a prudent counsel who
is faced with an adverse interlocutory ruling by a State's highest
court on a federal issue asserted as a dispositive bar to further
litigation. I suppose that such counsel would be unwilling to
presume that this Court would flout both the meaning of words and
the command of Congress by employing loose standards of finality to
obtain jurisdiction, but strict ones to prevent its loss. He thus
would be compelled to judge his situation in light of today's
formless, unworkable exception to the finality requirement. I would
expect him frequently to choose to seek immediate review in this
Court, solely as a matter of assuring that his federal contentions
are not lost for want of timely filing. The inevitable result will
be totally unnecessary additions to our docket and serious
interruptions and delays of the state adjudicatory process.
Although unable to persuade my Brethren that we do not have in
this case a final judgment or decree of the Supreme Court of
Georgia, I nonetheless take heart from the fact that we are
concerned here with an area in which "
stare decisis has
historically been accorded considerably less than its usual
weight."
Gonzalez v. Employees Credit Union, 419 U. S.
90,
419 U. S. 95
(1974). I would dismiss for want of jurisdiction.
[
Footnote 3/1]
See Construction Laborers v. Curry, 371 U.
S. 542,
371 U. S. 553
(1963);
Mercantile National Bank v. Langdeau, 371 U.
S. 555,
371 U. S. 572
(1963);
Hudson Distributors v. Eli Lilly, 377 U.
S. 386,
377 U. S. 395
(1964);
Organization for a Better Austin v. Keefe,
402 U. S. 415,
402 U. S. 420
(1971).
[
Footnote 3/2]
See, e.g., American Radio Assn. v. Mobile S.S. Assn.,
419 U. S. 215,
419 U. S. 217
n. 1 (1974);
Hudson Distributors v. Eli Lilly, supra, at
377 U. S. 389
n. 4.
[
Footnote 3/3]
The textual distinction between §§ 1291 and 1257, the former
referring to "final decisions," while the latter refers to "final
judgments or decrees," first appeared in the Evarts Act, Act of
Mar. 3, 1891, 26 Stat. 826, which created the courts of appeals.
Section 6 of that Act provided that courts of appeals should
exercise appellate jurisdiction over "final decision" of the
federal trial courts. The House version of the Act had referred to
"final judgment or decree," 21 Cong.Rec. 3402 (1890), but the
Senate Judiciary Committee changed the wording without formal
explanation.
See id. at 10218. Perhaps significance can be
attached to the fact that, under the House bill, the courts of
appeals would have been independent of the federal trial courts,
being manned by full-time appellate judges; the Senate version, on
the other hand, generally provided that court of appeals duties
would be performed by the trial judges within each circuit.
See § 3, 26 Stat. 827.
The first Judiciary Act, Act of Sept. 24, 1789, 1 Stat. 73, used
the terms "judgment" and "decree" in defining the appellate
jurisdiction of both the Supreme Court, § 25, and the original
circuit courts. § 22.
[
Footnote 3/4]
See, e.g., 28 U.S.C. § 1341 (limitation on power of
district courts to enjoin state taxing systems); 28 U.S.C. § 1739
(requiring that state judicial proceedings be accorded full faith
and credit in federal courts); 28 U.S.C. §§ 2253-2254 (prescribing
various restrictions on federal habeas corpus for state prisoners);
28 U.S.C. § 2281 (three-judge district court requirement); 28
U.S.C. § 2283 (restricting power of federal courts to enjoin state
court proceedings).
[
Footnote 3/5]
As pointed out in
Tornillo, 418 U.S. at
418 U. S. 247
n. 6, not only did uncertainty about Florida's "right of reply"
statute interfere with this important press function, but delay by
this Court would have left the matter unresolved during the
impending 1974 elections. In
Mills, the Court observed
that "there is practically universal agreement that a major purpose
of [the First] Amendment was to protect the free discussion of
governmental affairs." 384 U.S. at
384 U. S.
218.
[
Footnote 3/6]
One important distinction between this case and
Construction
Laborers v. Curry, 371 U. S. 542
(1963), has already been discussed,
supra, at
420 U. S.
505-506. Another is that the federal issue here is
constitutional, whereas that in
Curry was statutory.
[
Footnote 3/7]
Cf. United States v. Sisson, 399 U.
S. 267,
399 U. S. 307
(1970):
"Clarity is to be desired in any statute, but in matters of
jurisdiction it is especially important. Otherwise the courts and
the parties must expend great energy not on the merits of dispute
settlement, but on simply deciding whether a court has the power to
hear a case."