UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
106 F.3d 215
February 5, 1997, Decided
POSNER, Chief Judge.
This is a diversity suit, governed by Wisconsin law, mainly complaining of an invasion of the right of privacy by publicizing facts about the plaintiffs private life.
Tammy Howell, the plaintiff, was a 16-year-old schoolgirl living in LaCrosse, Wisconsin when she learned that the Charles Perez Show, a television talk show produced by the defendant and broadcast nationwide, was planning to tape a show about how ever since Cinderella's day stepparents and their stepchildren have had trouble getting along. The show broadcast a call for participants. Tammy, her older sister, their stepmother, Karen Hoeppner, and Karen's daughter volunteered. After being interviewed by a member of the shows staff, the four of them flew to New York for a taping in front of a live studio audience. Although the suit was dismissed on the pleadings, a copy of the tape is in the appellate record and Tammy's lawyer urged us to watch it, which we have done.
It opens with three of the four women sitting side by side: Tammy, a visibly pregnant quiet blonde girl at one end of the row (seven months pregnant, not married or, so far as appears, intending marriage to the father), the stepmother at the other end, and Tammy's very loquacious twenty-year-old sister in the middle. (Karen's daughter was offstage at the beginning.) The sister opens up by accusing the stepmother--married to the sister's father for only six months--of having begun an affair with him before his divorce from his wife, her mother, the critical evidence being a 2 a.m. phone call from the now-stepmother to the father before the divorce. (Murmurs of disapproval from the very active studio audience.) The stepmother denies this, adding that the wife had filed for divorce five times and enigmatically relating the phone call to this conduct. The sister keeps accusing the stepmother of adultery (a felony, be it noted, in Wisconsin), with Tammy adding supportive remarks from time to time. The stepmother pulls a sheet of paper from her pocket and starts to read, and Tammy asks whether it's her school attendance record. It isn't. It's a police report, the stepmother explains to the oohs and aahs of the increasingly vocal studio audience, and she reads a portion of it: Tammy "has been engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud behavior. She has threatened or hit others. She has referred to herself as the biggest gangster in town." (The word we have left blank, apparently an obscenity expunged by the producer, cannot be understood.) Tammy rises, smirks, does a 360 degree turn, displaying her pregnant state, and asks rhetorically, "Do I look like a gangster."
Now the stepmother's own daughter enters dramatically, to lend her mother support against the two stepdaughters.
Accusations are traded back and forth for a while; then the subject changes to Tammys pregnancy. It emerges that the father of her fetus is black, and host Perez raises the question whether the stepmother's tensions with Tammy may have something to do with race. Indignant denials. The stepmother's daughter announces that her own boyfriend is black. The panelists vie to outdo each other in proclaiming their delight in "colored babies." Black members of the studio audience protest the term and there is a further round of denials of racial animus. End of segment. We add, to avoid any misimpression created by our summary, that the exchanges among the antagonists, while unfriendly, do not appear to reflect any deep animosity. The record is silent on whether the women were paid to participate in the show, although the sisters mention the financial straits in which Tammy's pregnancy has placed her, supplying a financial motive for a paid television appearance.
The program had been taped, as we said, and the tape was not broadcast for another two weeks. During this time Tammy did not ask that it be withdrawn or that the portion of the program to which she now objects--the disclosure of the contents of the police report--be deleted. After the program was broadcast, however, Tammy's life at school became unbearable (according to allegations of the complaint that we must accept as true for purposes of the appeal) because of teasing by other kids, and eventually she had to change schools. She seeks damages for the humiliation and mental anguish inflicted by the publicity that the broadcast gave to the contents of the police report.
Wisconsin law limits the disclosure of police reports about juveniles. Whether the prohibition was violated here may be doubted; the stepmother appears to have obtained a copy of the report in accordance with the statute, and furthermore it is unclear whether disclosure by a private individual, as distinct from the government, is covered. But even if there was no violation of the disclosure statute, there may have been a violation of Wisconsin's privacy law. Tammy argues that either Perez should have interrupted the program when he realized that the stepmother was reading from a police report or the defendant should have erased that part of the tape before the broadcast.
In defending the judgment the defendant lays particular stress on the fact that the accusations in the police report do not concern really private facts. They amount to calling Tammy a rowdy and a brat. Not only is this pretty tame stuff by contemporary standards of adolescent decorum, but it is remote (the defendant argues) from the concerns of the privacy tort, as distinct from the tort of defamation. It is not a bringing to light of shameful private facts, involving nudity, sex, or serious but hidden physical or psychiatric problems, and so it is not the sort of disclosure that is "highly offensive" to the average person. This may be too narrow a conception of Wisconsin's law of privacy; Zinda found a prima facie violation in the publicizing of the fact that the plaintiff had been fired from his job for falsifying his employment records. We need not decide how private a private fact must be for publicizing it to violate Wisconsin privacy law. The complaint is not that the stepmother called Tammy these names but that the fact of Tammy's having drawn the attention of the police to her conduct--having acquired as it were a "police record"--has been publicized.
When the law seeks to draw a veil over an individual's past encounters with the law in order to facilitate the individual's reintegration into respectable society, the privacy tort may subject one who raises the veil to sanctions. This principle, which originated in the famous though much criticized "Red Kimono" case, Melvin v. Reid, 112 Cal. App. 285, 297 Pac. 91 (Cal. App. 193 1), is subject to a variety limitations, including the privilege of the media to disseminate information in which there is a legitimate public interest. Whether the privilege is applicable here, when it was no part of the defendant's purpose to bring to light Tammy's police record, or whether the principle of Melvin v. Reid applies even prima facie to so tepid a police record as Tammy has thus far compiled, we need not decide. Even if publicizing the police report was a prima facie invasion of rights that Tammy enjoyed by virtue of Wisconsin's tort law of privacy, her suit must fail.
Just as a lawyer who extracts inadmissible testimony from a witness cannot object when the opposing lawyer seeks to explore the evidentiary vein thereby exposed by asking further questions of the witness that would otherwise have been objectionable, so a person whose character is assailed can respond with facts bearing on the character of her assailant that might otherwise be off limits. Tammy joined her sister in accusing the stepmother of adultery as well as of mistreatment of her stepdaughters. The stepmother denied the accusations. Whom to believe? Information about Tammy's character was highly relevant to that issue, and some of it was contained in the police report and derived additional credibility from that source. Tammy may not hide behind Wisconsin's privacy law and from that shelter pelt her stepmother with defamatory accusations with impunity. Such a privilege would distort the terms of public debate by giving an unjustified advantage to the juvenile contestant.
This analysis assumes that Tammy was old enough to waive rights she
may have had under the tort law of privacy. She was a minor, and while
she seems on the videotape to be sufficiently mature to be capable of realizing
that by attacking her stepmother on national television she would be exposing
any skeletons in her own closet to a public airing, we cannot make a confident
judgment of her maturity from a few minutes of videotape, especially when
most of the talking was done by others. The very detailed complaint, however,
contains no hint that she was somehow inveigled by the defendant into traveling
to New York to appear on this television show with no conception of the
stakes. She was not so young as to be incapable of realizing that she would
be in a glass house throwing stones. We need not decide at what age a child
is sufficiently mature to waive her right of privacy, but 16 is old enough
when no circumstances of deception or overreaching or limited competence
The stepmother is not the defendant, however. So the fact that she had a right to use the police report in her defense does not automatically entitle the Tribune Entertainment Company to broadcast the report to millions. But if Tammy can broadcast her own accusations to millions, she should not be able to block her stepmother from broadcasting a reply to those accusations to the same audience. To prevent the audience from obtaining a one-sided view of the quarrel, the producer must be allowed to assert the stepmother's privilege.
And it was not the producer that dragged Tammy's police record into the glare of the klieg lights; it was a nonparty, the stepmother. It is one thing to impose liability on the press for invading someone's privacy, and another to impose liability on it for failing to prevent or take steps to rectify an invasion of privacy by another. No one suggests that the pre-program interview by the defendant's staff discovered the stepmother's intention of disclosing the police report; no doubt she kept that piece of rebuttal very much to herself. Of course when a television program invites quarreling family members to state their respective cases before an audience of millions, most anything can happen. But there is no principle in the law that by staging an event at which one person is likely to defame or invade the privacy of the other, the media become complicit in the defamation or the invasion of privacy. That kind of vicarious liability would put quite a damper on the media's taste for public controversy, in rather clear violation of the free speech clause of the First Amendment.
Having consented to the broadcast of her side of the case, Tammy could not insist on the editing out of the police report. That would have misled the television audience- and anyway she didn't ask that it be edited out. We do not criticize her for her failure to protest the impending broadcast. It is easy to understand that until her classmates saw the show and began teasing her in the inimitable style of adolescents she may not have apprehended the full consequences of what she had done. But she knew the contents of the segment and that it would be broadcast, and we conclude that the stepmother and derivatively the broadcaster were entitled to use private facts about the plaintiff to rebut her very public attack on the stepmother's own private character. So the suit was properly dismissed. In so ruling we do not mean to express approval of the practice of broadcasters of inviting teenagers to place themselves in embarrassing situations on television.
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