Appeal from the District Court of the United States for the Southern District of New York.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
William James Sidis was the unwilling subject of a brief biographical sketch and cartoon printed in The New Yorker weekly magazine for August 14, 1937. Further references were made to him in the issue of December 25, 1937, and a newspaper advertisement announcing the August 14 issue. He brought an action in the district court against the publisher, F-R Publishing Corporation. His complaint stated three "causes of action": The first alleged violation of his right of privacy as that right is recognized in California, Georgia, Kansas, Kentucky, and Missouri; the secon charged infringement of the rights afforded him under §§ 50 and 51 of the N. Y. Civil Rights Law (Consol. Laws, c. 6); the third claimed malicious libel under the laws of Delaware, Florida, Illinois, Maine, Massachusetts, Nebraska, New Hampshire, Pennsylvania, and Rhode Island. Defendant's motion to dismiss the first two "causes of action" was granted, and plaintiff has filed an appeal from the order of dismissal. Since a majority of this court believe that order appealable, for reasons referred to below, we may consider the merits of the case.
William James Sidis was a famous child prodigy in 1910. His name and prowess were well known to newspaper readers of the period. At the age of eleven, he lectured to distinguished mathematicians on the subject of Four-Dimensional Bodies. When he was sixteen, he was graduated from Harvard College, amid considerable public attention. Since then, his name has appeared in the press only sporadically, and he has sought to live as unobtrusively as possible. Untile the articles objected to appeared in The New Yorker, he had apparently succeeded in his endeavor to avoid the public gaze.
Among The New Yorker's features are brief biographical sketches of current and past personalities. In the latter department, which appears haphazardly under the title of "Where Are They Now?" the article on Sidis was printed with s subtitle "April Fool." The author describes his subjects's early accomplishments in mathematics and the wide-spread attention he received, then recounts his general breakdown and the revulsion which Sidis thereafter felt for his for his former life of fame and study. The unfortunate prodigy is traced over the years that followed, through his attempts to conceal his identity, through his chosen career as an insignificant clerk who would not need to employ unusual mathematical talents, and through the bizarre ways in which his genius flowered, as in his enthusiasm for collecting streetcar transfers and in his proficiency with an adding machine. The article closes with an account of an interview with Sidis at his present lodgings, "a hall bedroom of Boston's shabby south end." The untidiness of his room, his curious laugh, his manner of speech, and other personal habits are commented upon at length, as is his present interest in the lore of the Okamakammessett Indians. The subtitle is explained by the closing sentence, quoting Sidis as saying "with a grin" that it was strange, "but, your know, I was born on April Fool's Day." Accompanying the biography is a small cartoon showing the genius of eleven years lecturing to a group of astounded professors.
It is not contended that any of the matter printed is untrue. Nor is the manner of the author unfriendly; Sidis today is described as having "a certain childlike charm." But the article is merciless in its dissection of intimate details of its subject's personal life, and this in company with elaborate accounts of Sidis' passion for privacy and the pitiable lengths to which he has gone in order to avoid public scrutiny. The work possesses great reader interest, for it is both amusing and instructive; but it may be fairly described as a ruthless exposure of a once public character, who has since sought and has now been deprived of the seclusion of rpivate life.
The article of December 25, 1937, was a biographical sketch of another former chile prodigy, in the course of which William James Sidis and the recent account of him were mentioned. The advertisement published in the New York World-Telegram of August 13, 1937, read: "Out Today. Harvard Prodigy. Biography of the man who astonished Harvard at age 11. Where are they now? by J. L. Manley. Page 22. The New Yorker."
The complaint contains a general allegation, repeated for all the claims, of publication by the defendant of The New Yorker, "a weekly magazine of wide circulation throughout the United States." The each separate "cause" contains an allegation that the defendant publicly circulated the articles or caused them to be circulated in the particular states upon whose law that cause is assumed to be founded. Circulation of the New York World-Telegram advertisement is, however, alleged only with respect to the second "cause," for asserted violation of New York law.
1. Under the first "cause of action" we are asked to declare that this exposure transgresses upon plaintiff's right of privacy, as recognized in California, Georgia, Kansas, Kentucky, and Missouri.*fn1 Each of these states except California grants to the individual a common law right, and California a constitutional right,*fn2 to be let alone to a certain extent. The decisions have been carefully analyzed by the court below,*fn3 and we need not examine them further. None of the cited rulings goes so far as prevent a newspaper or magazine from publishing the truth about a person, however, intimate, revealing, or harmful the truth may be. Nor are there any decided cases that confer such a privilege upon the press. Under the mandate of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, we fact the unenviable duty of determining the law of five states on a broad and vital public issue which the courts of those states have not even discussed.*fn4
All comment upon the right of privacy must stem from the famous article by Warren and Brandeis on The Right of Privacy in 4 Harv.L.Rev. 193. The learned authors of that paper were convinced that some limits ought to be imposed upon the privilege of newspapers to publish truthful items of a personal nature. "The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. * * * The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury." Warren and Brandeis, supra at page 196.
Warren and Brandeis realized that the interest of the individual in privacy must inevitably conflict with the interest of the public in news. Certain public figures, they conceded, such as holders of public office, must sacrifice their privacy and expose at least part of their lives to public scrutiny as the price of the powers they attain. But even public figures were not to be stripped bare. "In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office. * * * Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while other are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation." Warren and Brandeis, supra at page 216.
It must be conceded that under the strict standards suggested by these authors plaintiff's right of privacy has been invaded. Sidis today is neither politician, public administrator, nor statesman. Even if he were, some of the personal details revealed were of the sort that Warren and Brandeis believed "all men alike are entitled to keep from popular curiosity."
But despite eminent opinion to the contrary,*fn5 we are not yet disposed to afford to all of the intimate details of private life an absolute immunity from the prying of the press. Everyone will agree that at some point the public interest in obtaining information becomes dominant over the individual's desire for privacy. Warren and Brandeis were willing to lift the veil somewhat in the case of public officers. We would go further, though we are not yet prepared to say how far. At least 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." See Restatement, Torts, § 867, comments c and d; Corliss v. E. W. Walker Co., C.C. Mass., 57 F. 434, 31 L.R.A. 283; Id., C.C., 64 F. 280, 31 L.R.A. 283; Jeffries v. New York Evening Journal Pub. ...