Opinion · Supreme Court of the United States

Zacchini v. Scripps-Howard Broadcasting Co.

Zacchini v. Scripps-Howard Broad. Co., 53 L. Ed. 2d 965 (1977)

Type: Opinion
Court: Supreme Court of the United States
Jurisdiction: Federal
Date: 1977-06-28
Topic: general

Mr, Justice Stevens, dissenting. The Ohio Supreme Court held that respondent’s telecast of the “human cannonball” was a privileged invasion of petitioner’s common-law “right of publicity” because respondent’s actual intent was neither (a) to appropriate the benefit of the publicity for a private use, nor (b) to injure petitioner.* *583As I read the state court’s explanation of the limits on the concept of privilege, they define the substantive reach of a common-law tort rather than anything I recognize as a limit on a federal constitutional right. The decision was unquestionably influenced by the Ohio court’s proper sensitivity to First Amendment principles, and to this Court’s cases construing the First Amendment; indeed, I must confess that the opinion can be read as resting entirely on federal constitutional grounds. Nevertheless, the basis of the state court’s action is sufficiently doubtful that I would remand the case to that court for clarification of its holding before deciding the federal constitutional issue. Paragraph 3 of the court’s syllabus, 47 Ohio St. 2d 224, 351 N.

Mr, Justice Stevens,

dissenting.

The Ohio Supreme Court held that respondent’s telecast of the “human cannonball” was a privileged invasion of petitioner’s common-law “right of publicity” because respondent’s actual intent was neither (a) to appropriate the benefit of the publicity for a private use, nor (b) to injure petitioner.*

*583 As I read the state court’s explanation of the limits on the concept of privilege, they define the substantive reach of a common-law tort rather than anything I recognize as a limit on a federal constitutional right. The decision was unquestionably influenced by the Ohio court’s proper sensitivity to First Amendment principles, and to this Court’s cases construing the First Amendment; indeed, I must confess that the opinion can be read as resting entirely on federal constitutional grounds. Nevertheless, the basis of the state court’s action is sufficiently doubtful that I would remand the case to that court for clarification of its holding before deciding the federal constitutional issue.

Paragraph 3 of the court’s syllabus, 47 Ohio St. 2d 224, 351 N. E. 2d 454, 455, reads as follows:

“A TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual’s right of publicity, unless the actual intent of the TV station was to *583 appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual.”

In its opinion, the court described the “proper standard” in language which I read as defining the boundaries of a common-law tort:

“The proper standard must necessarily be whether the matters reported were of public interest, and if so, the press will be liable for appropriation of a performer’s right of publicity only if its actual intent was not to report the performance, but, rather, to appropriate the performance for some other private use, or if the actual intent was to injure the performer. It might also be the case that the press would be' liable if it recklessly disregarded contract rights existing between the plaintiff and a third person to present the performance to the public, but that question is not presented here.” Id., at 235, 351 N. E. 2d, at 461.