Injunction against the publication of information about a woman'sabortion

[John Noble]

State law generally recognizes four forms of invasion of privacy: 1)
intrusion upon seclusion; 2) commercial appropriation of a person's name or
likeness; 3) unreasonable publication of private facts; and 4) placing a
person in a false public light. Restatement (Second) of Torts, sec. 652A.

Intrusion upon seclusion is limited by the "highly offensive to a
reasonable person" requirement. Restatement sec. 652B, comment a. Although
it has generally been applied in the context of physical intrusions, it has
also been invoked in the context of phone tapping and telephotography. In
either event, the tort would seem to be the unauthorized acquisition of the
private medical records, rather than publication. But if the acquisition is
illegal, either under common law or state statute regarding the disclosure
of medical records, the injunction might still be considered an appropriate
way of limiting the harm caused by the unlawful conduct. If the acquisition
was illegal, the analysis might be closer to Bartnicki v. Vopper than to
NAACP v Claiborne Hardware or OBA v Keefe, and turn on whether the
publisher was complicit in the illegal acquisition.

The unreasonable publication of private facts requires that "the matter is
made public, by communicating it to the public at large, or to so many
persons that the matter must be regarded as substantially certain to become
one of public knowledge." Restatement sec. 652D, comment a. This cause of
action recalls the Kirkland v. Sheehan decision, discussed here a few
months ago, in which a Washington Superior Court enjoined the internet
publication of police officers' social security numbers, but not other
private facts (photos, addresses, etc) because disclosure served a
legitimate public purpose. This suggests a balancing test -- is it a purely
private matter, or a matter of legitimate public interest. I think this is
probably the best theory to support the injunction against the
anti-abortion website, but it has problems. Consider whether the
publication would be less objectionable if it were published on Planned
Parenthood's website to expose a dangerously incompetent abortionist, over
the objection of the patient who had been paid for her silence and a
promise to block public disclosure by a third party.

One could also make an argument (on no more than the facts below -- I
haven't gone to the Salon article) that the publication implicates the tort
of appropriation of name and likeness, which protects "the interest of the
individual in the exclusive (commercial) use of his own identity."
Restatement sec. 652C, comment a. It has generally been applied in cases
involving the appropriation of a celebrity's name or likeness for
advertising purposes, but the logic might extend to the use of the woman's
name and picture, along with her medical records, if it is presented in a
fashion that suggests that she is endorsing the website's political
message. Ordinarily, that inference of endorsement arises from the fact
that people presume that celebrities have a right to allow and forbid the
commercial use of their name and likeness. In this case, the inference of
endorsement would arguably arise from arise from the assumption that the
website could only have gotten her medical records if she provided them
willingly. Granted, it's a stretch.

None of these theories are wholly satisfactory, but if you can squeeze the
facts into one of the theories, I think the injunction can be sustained as
a vindication of private rights, subject to a Shelley v. Kramer argument
that it's still state action.

John Noble

At 12:24 PM -0400 8/24/01, Leslie Goldstein wrote:
>is invasion of privacy not a tort?  Is does strike me that a private citizen's
>medical information is about as private as it gets.
>What is the law in general on injnctions to stop tortious behavior, or is no
>generalization available?
>LFG
>
>Eugene Volokh wrote:
>
>>         Any thoughts on this?  I think that publishing such information
>>is pretty
>> loathsome conduct, but I wonder whether an injunction against such
>> publication can be reconciled with the First Amendment, especially given
>> NAACP v. Claiborne Hardware and Organization for a Better Austin v. Keefe.
>>
>>         Recall that in the context of the boycott in Claiborne County,
>>the fact
>> that a black customer was shopping at a white-owned store could be highly
>> embarrassing for the customer -- and actually exposed the customer to a risk
>> of violence, something that thankfully seems not to be the case, at least as
>> of now, as to women who get abortions.  Can a court really enjoin such
>> speech?  Can it really stop people from accurately reporting facts that
>> suggest that a neighbor has behaved in ways that they think (even if
>> wrongly) to be monstrous, whether it's getting an abortion or betraying
>> their friends and neighbors?
>>
>>         Eugene
>>
>> "Judge bans woman's abortion information from Internet",
>> http://www.salon.com/tech/wire/2001/08/23/abortion_info/index.html, Aug. 23,
>> 2001
>>
>> A judge Wednesday ordered three anti-abortion activists to stop publishing a
>> woman's medical records detailing complications from an abortion. . . .
>>
>> Daniel and Angela Michael of Highland, who are regular protesters at the
>> clinic, admitted they took pictures of the woman as she was taken to the
>> hospital's emergency room.
>>
>> Soon after, a copy of the woman's medical records, her photograph and an
>> article written by Angela Michael about the case appeared on a Web site
>> operated by Stephen Wetzel of Omaha, Neb.
>>
>> The woman sued Wetzel, the Michaels and the hospital for violation of
>> privacy, seeking more than $50,000 in damages.
>>
>> Judge George Moran temporarily barred the Michaels and Wetzel from
>> publishing the material. Other anti-abortion Web sites have also posted it.
>> . . .