A headline in yesterday's editions, suggesting the Supreme Court would review whether an individual has the same First Amendment rights as the news media, was misleading. It should have said the court has been asked to review the case.
In numerous court cases and commentaries involving freedom of the press, an increasingly prominent question is whether indivduals have the same First Amendment rights as the news media.
Now, in a reportedly unprecedented case, the Supreme Court has been asked to meet the question head-on by agreeing to review a decision that a private person doesn't have the right to publish truthful information about a convicted criminal, and doesn't have the same right of publication as a newspaper, for example.
The individual is Brian King, operator of a laundry in Alexandria, La., that was plagued by crime from the time he took it over in 1970.
After thieves and vandals had victimized him 36 times, and after patrols, stakeouts and other security measures failed, King in October 1973 installed a camera to photograph intruders at work. Although arrests resulted, crimes persisted.
In October 1974, the camera photographed Michael G. Norris, 18, and an apparent accomplice in the act of committing a theft from the money box of a soft-drink machine.
Norris was arrested, pleaded guilty to a disdemeanor and drew a suspended sentence. But that didn't stop the thefts and vandalism.
Five months later, King, because "I just had to do something," fashioned what he hoped would be a novel deterrent: a bulletin-board display of "actual photographs taken by hidden camera of a theft in progress."
"CAUGHT IN THE ACT!" said the headline.Under it was a warning: "Any thieves or vandals operating on this private property should remember to smile . . . They'll be on candid camera."
One photo showed Norris standing in front of the money box. The caption gave his name and address and said that he "is careful. He wants to be sure no one is watching!"
A second photo was accompanied by this text: "Wow . . . Michael is swift. . . . If he runs fast enough while holding the money box with both hands maybe he won't get caught."
Then came the message that Norris wasn't faster than the camera or the police, had paid a fine of $105, and had been given a 91-day (actually, one year) suspended sentence and probation for a year, "Michael NOW has a police record," that message ended.
Finally came a photo of another young man with a text saying, "Well . . . Another one! The police say this specimen is . . . Marvin Sharp" and that he "was with Norris during the above theft." His address also was given.
Then came a series of questions: "Was Marvin an accomplice? Was Marvin the lookout? . . . When will his trial be held?" Court records don't show whether Sharp was arraigned or sentenced.
In November 1975, two weeks after getting off probation, Norris sued for damages and for a permanent injunction to prevent King from further publicizing his arrest and conviction.
At trial, Norris said the display - which was up 15 months - embarrased and humiliated him and amounted to undue harassment.
King testified that his purpose was to deter crime. "The time when all crimes ceased was when the display went up," he said. Norris' lawyer asked whether he couldn't have eliminated names and addresses, or blurred facial features? That would have made the photos less authentic and therefore less effective, he replied.
Trial Judge Martin L. Laird III ruled for Norris. King had a right to erect and maintain the display "for a period of time," but had committed an invasion of privacy that outweighed the guarantee of freedom of expression, he held. He awarded $500 in damages.
Last January, a state appeals court affirmed with a decision that King wants the Supreme Court to overturn.
In the opinion for a 2-to-1 majority, Judge Burton Foret said that the cases relied on by King in invoking First Amendment protection "involve the privilege and/or responsibility of the news media to openly publish, and this case involves a private citizen's right and privilege to do so." He went on to say:
"The responsibilities of the news media are very different from those of the individual citizen. The whole purpose and aim of the news media is to bring forth information to the public, to apprise the public of the events transpiring from day to day. That responsibility, duty, and purpose are not shared by the ordinary individual."
Foret said that King, seeking repayment of the stolen money, had threatened Norris and his family and, when that failed, chose to display the photos so as to humiliate him. By contrast, dissenting Judge John T. Hood Jr. said the facts showed "that no threats or harassment occured."
Foret said that King lost constitutional protection by preserving the bulletin-board display taken down, but would not have ordered payment of damages by a businessman who had been "justifiably alarmed" by repeated crimes. And he accused the majority of having gone "much too far" in allowing the "judicially created" right of privacy to prevail over "constitutional guaranteed" freedom of expression. He faulted the majority for:
Accusing King of being motivated by a desire for repayment rather than deterrence while ignoring not only Sharp, from whom he had never sought restitution, but also a more prominent second bulletin board featuring a thief said in the text to have made full restitution.
Giving no weight to the failure of Norris, his parents and his lawyer to protest the bulletin board to King during the 15-month period between its erection and the filing of the lawsuit.
Overlooking the "insignificant" amount of money stolen by Norris (no more than $50), which was much less than the cost of putting up a display purportedly intended to coerce restitution.