Bernstein v. National Broadcasting Company

This case is before the court on the defendant’s motion for summary judgment in two consolidated actions for invasion of privacy.

Both actions arise from the same undisputed facts. In 1919 plaintiff, Charles S. Bernstein, was convicted of bank robbery in Minnesota and sentenced to imprisonment for forty years. After serving nine years, he was paroled and pardoned. In 1933 in the- District of Columbia, plaintiff, under the name Charles Harris, was tried and convicted of first-degree murder and sentenced to death by electrocution. In 1934 the conviction was affirmed, Harris v. U. S., 63 App.D.C. 232, 71 F.2d 532, and a petition for certiorari denied by the Supreme Court, 293 U.S. 581, 55 S.Ct. 94, 79 L.Ed. 678. Through the efforts of a number of interested persons and committees working in plaintiff’s behalf, 1 and partly as the result of the work of Martha Strayer, 2 a reporter on the *819 Washington Daily News, in 1935 the death sentence was commuted to life imprisonment. In 1940, after plaintiff had served five years at various federal institutions, he received a conditional release from his life sentence, and in 1945 a Presidential pardon.

Plaintiff alleges that, “Commencing in 1940, and thereafter, * * * [he] was no longer in the public eye; * * * lived an exemplary, virtuous, honorable, righteous, quiet and private life, free from the prying curiosity which accompanies either fame or notoriety; * * * shunned and avoided notoriety and publicity; * * * never exhibited or sought to exploit his name, personality or the incidents of his past life for money, profit, or commercial gain; * * assumed a place in society, knew many people and made many friends who were not aware of the incidents of his earlier life.”

Plaintiff’s deposition shows that from the time of the trial until 1940, when plaintiff secured conditional release, his story was given much publicity by the newspapers and others working on his behalf. Subsequent to his release in 1940, he obtained government employment in the District of Columbia, holding various positions and attaining Civil Service Grade CAF-11. In 1945, this employment ended, and thereafter, from 1945 to 1951, he lived in Front Royal, Virginia, operating a “resort lodge.” In February, 1953, some time after the filing of these actions, plaintiff again secured government employment in the District, rooming in Washington but still maintaining his family home in Front Royal, Virginia.

In 1936 or 1937 a detective story magazine carried an article on plaintiff’s case. 3 In 1948 a radio program told plaintiff’s story, using Martha Strayer’s name, in a fictionalized version, but so similar to the facts that plaintiff and several others identified the story as his. 4

On January 18, 1952, the defendant NBC telecast “live” over 39 stations in its network a television program prepared by Prockter Television Enterprises, Inc., sponsored by American Cigarette & Cigar Company 5 and advertising Pall Mall cigarets, entitled “The Big Story.” This program, classified by the Federal Communications Commission as a network commercial entertainment program, was a fictionalized dramatization based on the plaintiff’s conviction and pardon, and lauding the efforts of Miss Strayer, the Daily News reporter, toward securing commutation of plaintiff’s sentence. The same program was telecast over twelve other NBC network stations by means of a kineoscope recording on January 29, 31, February 1, 2, 3, and 8, 1952. The only true names used were those of Martha Strayer, the Washington Daily News, the President of the United States, and the District of Columbia. Over forty-three of the NBC stations telecasting “The Big Story,” it was announced a week prior to the telecast here involved, that the following week's program would tell the true story of how Martha Strayer fought to save the life of an innocent man convicted of murder. 6 On January 7, 1952, NBC issued a press release concerning the program. 7 Neither the tele *820 vision announcement nor press release mentioned plaintiff’s name.

Plaintiff alleges that, although his true name was not used in the telecast, the actor who portrayed him resembled him physically and plaintiff’s words and actions were reproduced both visually and aurally, creating a portrayal of plaintiff recognizable to him and to his friends and acquaintances, and clearly identifying plaintiff in’ the public mind. 8

Prior to the telecast, Prockter Productions, Inc., obtained a release or waiver of the right of privacy from Martha Strayer to use her name and to portray her in connection with “The Big Story,” but no such waiver or release was obtained from plaintiff.

About five days before January 18, 1952, plaintiff learned through his wife’s cousin that NBC would carry a television program based upon his past life. 9 He .thereupon called the National Broadcasting Company in Washington and on January 17 and 18, 1952, wrote letters to the Company and its manager in Washington, requesting defendant not to broadcast the program. 10 The program was telecast as scheduled.

Plaintiff alleges that the telecast of this program constituted “a willful and malicious invasion of * * * [his] right of privacy as recognized by the laws of New York, Ohio, Illinois, California, Connecticut, Massachusetts, Rhode Island, Pennsylvania, Delaware, Maryland, Virginia, Wisconsin, Alabama, Tennesee, Iowa, Minnesota, Washington, Texas, Michigan, Missouri, Florida, Utah, Georgia, West Virginia, Kentucky, Nebraska, New Jersey, and Indiana,” and the District of Columbia, and that by reason of the telecasts “plaintiff’s personality has been violated by being exposed, exhibited, and sold to the public; plaintiff has been subjected to the inquisitive notice of the general public to the injury of his personality, to the outrage of the finer sentiments of his nature and to the humiliation of his self-respect; and plaintiff, a private personality and having an individual personality, has thus been made notorious and conspicuous to the public and has been singled out for and identified to the public notice and attention, which is utterly obnoxious to plaintiff; and plaintiff has been caused and has suffered great mental pain and personal injury,” for which he asks $250,000 actual damages. Plaintiff further alleges that the acts of defendant NBC were “willful, wanton, malicious, and intentional, and perpetrated with a reckless disregard of the rights of plaintiff and without his knowledge, consent and acquiescence,” entitling him to punitive damages of $500,000.

The complaint in Civil Action 3517-52 is drafted on a single tort theory, alleging the telecast on January 18, 1952, over Station WNBW, Washington, D. C. Civil Action 5663-52 is drafted on a multiple tort theory, claiming a separate tort in each of twenty-eight states in which the program was telecast by relay of the “live” broadcast in New York or by re-broadcast by means of kineoscope recording, and asks varying amounts of actual and punitive damages for the telecast in each state.

Defendant in its motion for summary judgment contends that neither of the complaints states a cause of action upon which relief may be granted.

*821 Voluminous briefs on the legal points involved have been filed by both parties, the court has had the benefit of very full argument by respective counsel, and in connection with the argument of the motion (by stipulation of the parties) viewed the kineoscope recordings of the program of January 18, 1952, and the announcement of the week before. The facts stated in the complaint and answer are supplemented in detail by many affidavits, stipulations, answers to interrogatories, admissions, and depositions, most illuminating of which is plaintiff’s own deposition.

The telecast here involved was one of a series of similar dramatizations, commending the accomplishments of newspaper reporters in bringing criminals to justice or in securing the release of innocent persons convicted of crime. In each of the programs the actual name of the reporter and his paper were used, but the names of other persons portrayed were changed, and the incidents were fictionalized for dramatic effect.

On this particular program, the man convicted of crime was called Dave Crouch and the murdered man Woody Benson. Benson, a gambler running a game in Alexandria, was shot as he walked along the sidewalk in the District of Columbia, by a man riding in a car. Crouch was arrested while asleep on a bench in a bus terminal in Washington. He was inadequately defended at his trial by a Mr. Kendall, an inexperienced court-assigned counsel, who did not call as an alibi witness Crouch’s “common-law wife,” Helen Slezak, with whom Crouch had spent the day of the murder in New York. Mr. Kendall showed lack of confidence in the success of the defense, in view of Crouch’s previous conviction in Minnesota of which he was innocent and for which he had been pardoned. At the trial, the court admitted a detective’s statement as to Crouch’s Minnesota conviction, omitting any reference to the pardon. Kendall did not call Helen as a witness, on the ground that the “blue ribbon jury,” “all respectable property owners,” might be prejudiced against a common-law wife, although Dave explained to him that were not legally married because Helen’s husband would not give her a divorce. Crouch was convicted on the testimony of a Mrs. Hedlund, a garrulous middle-aged woman, who positively identified him as the murderer whom she had seen, as he fired the shot, when she looked from the window of her upstairs apartment. After conviction, Crouch was pictured as desperately playing solitaire in his cell and checking off on a calendar the days leading up to his execution, whenever Miss Strayer called upon him there. 11

*822 Martha Strayer was portrayed as interesting a Mr. Burbage, an attorney of thirty-five years’ experience in the Department of Justice, in attempting to have Crouch’s sentence commuted, and herself discovering that Mrs. Hedlund could not have seen the murderer from her window, which would have been obscured at the time of the crime by leafed-out branches of a tree. Miss Strayer’s newspaper stories were credited with bringing into her office a Mrs. Watson, a theretofore unknown eyewitness, who had clearly seen the crime and testified that the murderer was not Davfe Crouch. The program represented Miss Strayer as the person whose faith in the innocence of Crouch and investigations and newspaper articles arousing public opinion resulted in saving Crouch the very day before the execution. In the final scene of the program, Crouch was shown with Mr. Burbage thanking Miss Strayer in her office, following his release from “Lewisburg Prison.”

The record in the actual criminal case and the pleadings and deposition of plaintiff in this case, reveal: The plaintiff, as Charles Harris, was convicted of first-degree murder, in connection with the shooting of Milton White Henry, a Washington gambler, on April 21, 1932, in the District of Columbia. About 6 a. m., while Henry, in his car, was stopped behind a milk wagon in the narrow street in front of his apartment, he was killed by a man who alighted from a Hudson automobile, shot him, and then jumped on the running hoard of the Hudson, which sped away. Harris was arrested in Philadelphia, while looking in a store window, accompanied by his “wife”. At the trial, he was identified as the murderer by a Mr. Rhodes, an attorney’ with. the Federal Trade Commission, who testified that he had seen Harris at the time of the shooting from the window of his apartment and heard Harris tell the driver of the Hudson to “keep moving” and “step on it.” Mr. Rhodes testified that the trees in front of his apartment were in bud at the time and “might have been forming leaves,” but that he had an unobstructed view of the shooting. 12 The driver of a laundry truck testified that on the day before the crime he had passed by the scene of the murder on three different delivery trips and, five different times, had seen the same ear, identified as that driven by the men who committed the murder, with the same two men in it, and that the defendant was one of them.

At the trial Harris was represented by two attorneys of his own selection, one of whom had eight years’ experience in the District of Columbia and a largely criminal practice. Plaintiff did not take the stand in his own behalf, but defense witnesses testified that he was in New York at the crucial time. The woman with whom Harris was living in New York was not called at a witness because counsel “didn’t want to besmirch her character.” 13 Harris and the woman were not legally married because he had a living wife, and the woman’s name did not in any way resemble “Helen Slezak.” On appeal, Harris was represented by different counsel, one • of whom, Mr. Burkinshaw, had had about two or three years’ experience with the-Department of Justice.

After affirmance of the conviction, new evidence was submitted to the Department of Justice in the. form of affidavits from the Department of Agriculture and the Weather Bureau that, the trees in front of Mr. Rhodes’ apartment would have been fully leafed out. at the time of the crime and the testimony ■ of an eyewitness who came forward after the trial, a lady 14 who, after-viewing Harris at the Jail, stated he was not the man who did the shooting. Miss Strayer did interview Harris at the Jail on a number of occasions and dis *823 cussed his case with him, but always in the Superintendent’s office or in the “rotunda,” not in Harris’ cell. Harris did not play solitaire in his cell, as prisoners were not permitted to have cards. He spent a great deal of time reading history, philosophy, and psychology. He did not cross the days off a calendar prior to the execution date, which was postponed eight times by the court. The death sentence was stayed by warrant of reprieve signed by the President four days before the date fixed for electrocution. During the two years he was confined in the “death row” at the District Jail awaiting execution, plaintiff did undergo great mental and emotional strain. The plaintiff, after his release from Leavenworth, went to see Miss Strayer in her office to thank her for her part in securing his release, but he is not sure whether his attorney accompanied him.

Plaintiff alleges that the actor who portrayed Dave Crouch resembled him physically, as he appeared at the time of his trial. 15 For the purpose of this motion, the court will assume that this resemblance exists.

Thus, the points of similarity between the plaintiff’s life and the television story of Dave Crouch are reduced to: a conviction in the District of Columbia of first-degree murder in connection with the shooting of a gambler in Washington ; failure to call a “common-law wife” as an alibi witness; Miss Strayer’s effective interest in proving the defendant’s innocence; securing of other counsel after the trial; emotional turmoil of the convicted man while awaiting execution; additional evidence as to the leaves in front of an eyewitness’ apartment window; another eyewitness coming forward, after affirmance of the conviction, to state that defendant was not the murderer; thanking of Miss Strayer by the defendant after his release; and a physical resemblance between the actor and the plaintiff as he was twenty years ago.

*824 Plaintiff concedes that there was nothing defamatory of him in the telecast and bases his entire complaint on the alleged invasion of his privacy. He concedes that his name was never mentioned, but contends that the physical resemblance of the actor who portrayed Dave Crouch to himself as he was twenty years before the telecast, and the similarities between the story of Dave Crouch with the facts of his own life, were such that his friends readily identified him as the person whose story was being portrayed.

Counsel further concedes that plaintiff’s conviction and commutation of sentence, when they occurred, were matters in the public domain, and that a dramatization at that time based on the facts and containing nothing defamatory, similar to the program in question would not have been an invasion of plaintiff’s privacy. 16 It is contended, however, that by reason of the lapse of time since plaintiff’s release in 1940 and the nonpublic character of his activities since that date, his life has regained its private character, and he was in 1952 entitled to protection from any invasion of his privacy by revival of the story of his conviction and the subsequent proceedings, with consequent emotional distress to him and interference with his social and employment relations. Plaintiff argues that his past history has lost its news interest and is of no educational value, and that the prime purpose of the telecast of “The Big Story” was to sell Pall Mall cigarets by exploitation of his personal history.

Many points have been briefed and argued by counsel for the respective parties, but the case reduces itself to a few legal questions:

First, the law of what jurisdiction or jurisdictions is to be applied in resolving the other legal questions?

Second, can a public personage — to be specific, a person involved in a criminal trial — by virtue of the passage of time spent out of the public gaze, regain a private status so as to make his past legally protectible against invasion of privacy?

Third, do the facts alleged in plaintiff’s complaints state a cause of action?

Fourth, is there any issue of material; fact in this case which makes summary-judgment inappropriate?

I

The confusion as to choice of law in-, actions for defamation and invasion of privacy arising from interstate publication is ably described by Dean Prosser at 51 Michigan Law Review 959. 17 He there discusses as possible choices: (1) the law of each place of “impact;” (2)-the law of the first place of impact; (3)-the law of the place of predominant impact; (4) the law of the place of defendant’s act; (5) the law of defendant’s principal place of business; (6) the law of the state of defendant’s incorporation; (7) the law of the place-of plaintiff’s domicil; (8) the law of plaintiff’s principal place of business; (9) “piecemeal law,” or application of the law of different jurisdictions to different aspects of the case, such as liability, damages, effect of retraction, and so on; and (10) the law of the forum. The article cites eases illustrative of the various alternatives and points out the difficulties involved in applying each of' them.

It is apparent to this court that the lumping of invasion of privacy with defamation leads to error in choice of *825 law, since determination of the law applicable to an action for invasion of privacy by interstate publication must depend upon a consideration of the nature of the tort itself, which differs materially from slander or libel.

As well stated in Reed v. Real Detective Publishing Co., 1945, 63 Ariz. 294, 295, 305-306, 162 P.2d 133, 139:

“The gravamen of the action * * * is the injury to the feelings of the plaintiff, the mental anguish and distress caused by the publication. * * * Unlike libel and slander, the gist of the cause is not injury to the character or reputation which appertains to the standing of a person in the eyes of others and are attributes in law separate from the ‘person’. * * *

“Since, under the law, recovery may be had for an invasion of the right of privacy for injured feelings alone, the wrongs redressed must be considered as a direct rather than an indirect injury and one that is wholly personal in character, not depending on any effect which the publication may have on the standing of the individual in the community. It seems to us that the mind of an individual, his feelings and mental processes, are as much a part of his person as his observable physical members. An injury, therefore, which affects the sensibilities is equally an injury to the person as an injury to the body would be. In that respect a cause of action for the violation of the right of privacy, causing mental suffering to the plaintiff, is an injury to the person. Wyatt v. Hall’s Portrait Studio, 71 Misc. 199, 128 N.Y.S. 247. * * *• ” 18

The tort of invasion of privacy being a personal injury, the question whether plaintiff has a cause of action on the facts stated by him should be determined by the law of the jurisdiction where he sustained the injury, 19 or, as expressed in § 377 of the Restatement, Conflict of Laws (1934), “the state where the last event necessary to make an actor liable for an alleged tort takes place.” The injury in these cases is the humiliation and outrage to plaintiff’s feelings, resulting from the telecast. The last event necessary to make the defendant liable was not the final act in publication of the telecast, as plaintiff argues, but the reaction of the telecast on his own sensibilities. 20

Thus, in Civil Action 3517-52, although the publication was set in motion in New York with the acting of the story and the transmission was completed in the District of Columbia by WNBW, the harm did not occur until the impact of the telecast upon plaintiff, in whatever *826 jurisdiction he may be considered to have had his situs. Similarly, in Civil Action 5663-52, although the program was broadcast “live” simultaneously in a number of different states on January 18, 1952, and by kineoscope recording on subsequent dates in other jurisdictions, the impact of all the broadcasts occurred in one place, the jurisdiction where plaintiff was when his feelings were wounded.

Whether the telecasts on the different dates constituted separate torts or whether each was a part of one alleged invasion of plaintiff’s privacy, and whether plaintiff’s privacy, once shattered on January 18, 1952, was susceptible of further invasion by the subsequent telecasts of the kineoscope recording, are academic questions. The impact on plaintiff’s sensibilities on all of these occasions would have occurred in one and the same jurisdiction, since during the entire period of the original telecast and rebroadcasts plaintiff was domiciled and had his major contacts in the same places. If a tortious invasion of privacy be held to have occurred, damages for the injury to plaintiff’s feelings would be assessed under the law of the one jurisdiction which is determined to have been his situs, but he could recover there for the whole amount of harm inflicted on his feelings, considering, among other factors, the extent of the publication or publications in that and other .jurisdictions.

Plaintiff may be considered to have suffered humiliation either at the place of his domicil, which would be his normal situs, or, if at the time of the tort he was spending most of his time elsewhere, at the place of the most of his contacts. It has been admitted that plaintiff’s domicil at the time of the telecast was Virginia, 21 where he maintained his family home, resided with his wife, paid taxes, and voted. Plaintiff argues that the greater number of his contacts were in the District of Columbia. 22 Conceding, for the purpose of this motion, that most of plaintiff’s contacts were in the District and that this is the jurisdiction where he suffered the greatest impact on his feelings as the result of the telecast, and therefore the law of the District should be applied, it would make no difference in the court’s disposition of the motion for summary judgment, as shown by the discussion under point III.

II

As to the second question, whether a public person may, by the passage of time in private life, re-acquire a right of privacy as to his past life, there is a divergence of opinion.

The Restatement of the Law of Torts, § 867, summarizes the right of privacy very generally, stating:

“A person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.”

The Restatement then notes that the protection accorded one’s privacy is relative to the custom of the time and place and to the habits and occupation of the plaintiff, and that one must expect the ordinary incidents of community life of which he is a part. It points out that public figures must pay the price of unwelcome publicity and that those who unwillingly come into the public eye in connection with a criminal prosecution, innocent or guilty, are objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention, and that “until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privilege which publish *827 ers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.”

Several cases have been cited to the court which have dealt with the question whether time brings protection to a former public figure. Two in particular, which reach opposite conclusions, are relevant to the problem. In Sidis v. F. R. Pub. Corp., 2 Cir., 113 F.2d 806, 809, 138 A.L.R. 15, certiorari denied, 1940, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462, a former child prodigy, who had sought oblivion for many years, loathing public attention, claimed an invasion of his right of privacy by an unvarnished factual account in The New Yorker magazine of his life (using his name), including the many years which he had lived out of the public eye and touching on many personal details. It was there held by the federal court sitting in New York (a jurisdiction which has rejected the right of privacy as unrecognized at common law and has strictly interpreted its statute affording limited protection) that, although the plaintiff had dropped out of sight after 1910, “his subsequent history, containing as it did the answer to the question of whether or not he had fulfilled his early promise, was still a matter of public concern”, and that the New Yorker sketch of the life of such an unusual personality possessed considerable popular news interest. The court there stated, 113 F.2d at page 809:

“ * * * we would permit limited scrutiny of the ‘private’ life of any person who has achieved, or has had thrust upon him, the questionable and indefinable status of a ‘public figure.’ * * *

“ * * * Regrettably or not, the misfortunes and frailties of neighbors and ‘public figures’ are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.”

In Melvin v. Reid, 1931, 112 Cal.App. 285, 297 P. 91, 93, a reformed prostitute who had been tried and acquitted on a murder charge, sued for invasion of her privacy by a motion picture based on the facts of her past life, disclosing her former occupation, and using her true maiden name. After stating that the right of privacy does not exist as to public persons, in the dissemination of news and news events, in the discussion of events of the life of a person in whom the public has a rightful interest, or where the information would be of public benefit, and concluding that the mere use in the motion picture of incidents from the life of plaintiff, taken from the public records, was not actionable, the court said:

“One of the major objectives of society as it is now constituted, and of the administration of our penal system, is the rehabilitation of the fallen and the reformation of the criminal. Under these theories of sociology, it is our object to lift up and sustain the unfortunate rather than tear him down. Where a person has by his own efforts rehabilitated himself, we, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime. Even the thief on the cross was permitted to repent during the hours of his final agony.

“We believe that the publication by respondents of the unsavory incidents in the past life of appellant after she had reformed, coupled with her true name, was not justified by any standard of morals or ethics known to us, and was a direct invasion of her inalienable right guaranteed to her by our [California] Constitution, to pursue and obtain happiness.” (Emphasis supplied.)

In a third case, Mau v. Rio Grande Oil, Inc., D.C.Cal., 1939, 28 F.Supp. 845, the complaint was held to state a cause of action where it alleged that defendant had broadcast an advertising program *828 dramatizing a holdup and shooting in which plaintiff had been the victim, a year after the incident and using plaintiff’s name without his consent, and that hearing the broadcast had caused plaintiff mental anguish, aggravated by telephone calls from sympathetic friends who also heard it and were desirous of rehashing the near-tragedy which plaintiff wished to forget.

It should be noted that in each of these cases the complainant was identified by name in the publication by defendant, as the plaintiff in this case was not in the telecast.

This court agrees that we are not so uncivilized that the law permits, in the name of public interest, the unlimited and unwarranted revival by publication of a rehabilitated wrongdoer’s past mistakes in such a manner as to identify him in his private setting with the old crime and hold him up to public scorn. 23 Persons formerly public, however, cannot be protected against disclosure and re-disclosure of known facts through the reading of old newspaper accounts and other publications, oral repetition of facts by those familiar with them, or reprinting of known facts of general interest, in a reasonable manner and for a legitimate purpose. The advocates of recognition of the right of privacy would not so extend it. 24 Public interest must be balanced against the individual’s rights. Though fairness and decency dictate that some boundary be fixed beyond which persons may not go in pointing the finger of shame at those who have erred and repented, reasonable freedom of speech and press must be accorded and the fact of social intercourse must be recognized. Public identification of the present person with past facts, however, would constitute a new disclosure and, if unwarranted, would infringe upon an existing privacy. Thus, it would appear that the protection which time may bring to a formerly public figure is not against repetition of the facts which are already public property, but against unreasonable public identification of him in his present setting with the earlier incident. 25

*829 Determination of this question is not, however, essential to disposition of the present motion. Assuming arguendo that at the time of the telecast plaintiff had regained a private status carrying with it legal protection from republication of the facts of his past life, the complaints, as supplemented by plaintiff’s deposition and the various admissions, stipulations, and answers to interrogatories by the respective parties, do not state a valid cause of action.

Ill

As concluded under point I, the two jurisdictions which might be deemed the place of plaintiff’s injury and therefore held to govern his right of action, are Virginia and the District of Columbia.

The Virginia Code, 1950 ed., Vol. 2, provides:

“§ 8-650. Unauthorized use of THE NAME OR PICTURE OF ANY PERSON. A person, firm, or corporation that knowingly uses for advertising purposes, or for the purposes of trade, the name, portrait, or picture of any person resident in the State, without having first obtained the written consent of such person, or if dead, of his surviving consort, or if none, his next of kin, or, if a minor, of his or her parent or guardian, as well as that of such minor, shall be deemed guilty of a misdemeanor and be fined not less than fifty nor more than one thousand dollars. Any person whose name, portrait, or picture is used within this State for advertising purposes or for the purposes of trade, without such written consent first obtained or the surviving consort or next of kin, as the case may be, may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait, or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages. (Code 1919, § 5782.)”

No reported Virginia cases interpreting this statute have been cited to the court, nor has the court found any. It is apparent from a reading of § 8-650 that the right of action accorded is limited. The statute is modeled on the New York law, 26 discussed fully in the opinions in Gautier v. Pro-Football, Inc., 278 App.Div. 431, 106 N.Y.S.2d 553, affirmed 304 N.Y. 354, 107 N.E.2d 485, which cite many cases interpreting the law in connection with various phases of the right of privacy. Suffice it to say, the New York statute has been given a strict construction. Publication of “biographical narratives of a man’s life when it is of legitimate public interest, and ‘travel stories, stories of distant places, tales of historic personages and events, the reproduction of items of past news, and surveys of social conditions’ ” are generally considered beyond the purview of the statute. This principle has been extended to the newsreel, the radio, and television. 27

It is patent that the television program here involved does not fall within the language or purpose of § 8-650 of the Virginia Code.

Whether a right of action for invasion of privacy exists in the District of Columbia has not been authoritatively determined. The history of the right of privacy in other jurisdictions is set forth *830 in Judge Holtzoff’s opinion in Peay v. Curtis Publishing Company, D.C.D.C. 1948, 78 F.Supp. 305.

Almost thirty years ago, in Peed v. Washington Times Company, 55 W.L.R. 182, Mr. Justice Siddons recognized the right of privacy as within the constitutional guarantee of personal liberty and security. 28 The constitutional approach to the right of privacy has been criticized by a number of writers on the ground that the individual liberties guaranteed are rights of the citizen against the government, not of individual against individual. This is a logical criticism. Nevertheless, the recognition of the right of privacy harmonizes with the concept of the rights of the individual in a free society embodied in our Constitution. 29

The right of privacy was recognized by Judge Holtzoff of this Court in the Peay case, supra, as a modern adaptation of the common law. 30 Judge Pine, however, in Elmhurst v. Shoreham Hotel, D.C. D.C.1945, 58 F.Supp. 484, held that the tort of invasion of the right of privacy was unknown at common law and therefore could not be recognized in the District of Columbia, by reason of § 49-301 of the District of Columbia Code, 1951 Ed., 31 Stat. 1189, which continued in effect in the District the common law, both civil and criminal, in force in Maryland in 1801, except insofar as it is inconsistent with or replaced by subsequent legislation of Congress. The Court of Appeals affirmed the Elmhurst decision, Elmhurst v. Pearson, 1946, 80 U.S.App.D.C. 372, 153 F.2d 467, on the ground *831 that the right of privacy does not include protection from publication of matters of legitimate public or general interest, hence the broadcast there complained of was not actionable; but that Court specifically left undecided whether an action for invasion of privacy can be maintained in the District of Columbia.

The purpose of Warren and Brandéis in The Right to Privacy, supra, was “to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.” (At 197.) After examination of English cases affording redress for publication of diaries or private letters or drawings and prohibiting publication of even a description of their contents, the authors concluded that privacy was the true interest which formerly was given protection by the common law in the guise of various other conventional legal interests, and they recommended that the right to one’s personality and the remedy for invasion of privacy be recognized for what they really are. The reasoning of Warren and Brandéis is less open to attack, and to it this court subscribes.

Other courts have traced the right of privacy to natural law. 31

Whether the right to protection of one’s privacy be viewed as stemming from natural law, as a constitutional right, or as a right which was afforded protection under the common law, though not by name, § 49-301 of the District Code does not preclude recognition in the District of Columbia of a common-law action for invasion of privacy.

What are the elements of such a common law action? Invasion of privacy has been summarized in the exhaustive annotation appearing at 138 A.L.R. 22, at 25 (supplemented at 168 A.L.R. 446 and 14 A.L.R.2d 750) as:

“The unwarranted appropriation or exploitation of one’s personality, the publicising of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” (Emphasis supplied.)

Under this definition, which embodies the minimum requirements of the many cases there noted, the essential elements of an action for invasion of privacy would be: (1) private affairs in which the public has no legitimate concern; (2) publication of such affairs; (3) unwarranted publication, that is, absence of any waiver or privilege authorizing it; and (4) publication such as would cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. As to the first element, the “private” affairs should be at least currently unknown to the public; and as to the second element, publication would necessarily include identification of the facts disclosed with the complainant. The third element, a mixed question of fact and law, and the fourth element, a fact question for the jury, need not be reached if either of the first two elements is not present.

On the undisputed facts disclosed by the various pleadings and admissions before the court on this motion, it is clear that the first two essential elements of a cause of action are lacking in the case at bar.

(1) The plaintiff’s affairs were not private and were known to the public. His case had been given considerable publicity from the time of his trial in 1932 until his conditional release from imprisonment in 1940. Newspaper files at all times contained the story of his *832 conviction and the subsequent proceedings, including plaintiff’s past record and the failure to call his “common-law wife” as a witness at the trial. 32 The Court of Appeals’ decision affirming the conviction, printed in both the Reports of Cases Adjudged in the United States Court of Appeals for the District of Columbia and in the Federal Reporter, Second Series, reveals that the man who gave his name as Charles Harris at the time of his arrest subsequently gave the name Charles Bernstein to a detective and in his motion for a new trial. These volumes have been on many library shelves and available to all since 1934. About 1936 or 1937 a detective story magazine article on plaintiff’s case was published. 33 In 1948, a radio play, a fictionalized version of the case, using the name of Martha Strayer, was broadcast. 34

(2) The admitted facts show there was no publication by defendant of the program as the plaintiff’s prior history. Not only was there no identification of plaintiff by name in either the telecast or defendant’s advertisements thereof, but he was doubly insulated from identification by designation of the television character as “Dave Crouch” and his own trial as “Charles ‘Harris.” Except to one already familiar with the facts or one who had stumbled on the reported court decision or the old newspaper items, there was nothing to link Charles Harris with any Charles Bernstein, much less plaintiff. To one who viewed the telecast not already aware of plaintiff’s past or Miss Strayer's connection with him, the o