Valerie Plame Redux, Southwest Style

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While all versions of "fair use" share some of the same 1st Amendment genetic code, the doctrine has one meaning in copyright law, other meanings under trademark law (such as 15 U.S.C. Sections 1115(b)(4) & 1125(c)(4)), and yet other meanings in the field of right of publicity

But for those of us who toil in the journalism vineyards -- where the purest and oldest of those DNA strands are found -- the fair use defense actually travels, at least in invasion of privacy lawsuits, under the alias of "newsworthiness."  The scope of that doctrine took center stage in Alvarado v. KOB-TV, a recent 10th Circuit decision affirming a district court's dismissal of a lawsuit filed by two undercover cops against an Albuquerque TV station that broadcast their identities. The  plaintiffs were Albuquerque cops who were named on the news show as suspects in a sexual assault case; in addition, the station aired video footage of each man opening the door to his home after the reporter rang the doorbell.  The cops were eventually cleared of the sexual assault charge, although they continued to receive threats as a result of the broadcast. There was no defamation claim because the station's broadcast was entirely true: they had indeed been charged with a crime.  So instead, they (and their wives) sued the station for invasion of privacy and intentional infliction of emotional distress.

Their invasion of privacy claim was unusual.  The typical case involves public disclosure of a private, intimate and often embarrassing fact about the plaintiff, usually concerning a matter of sexual practice or health. But here, in an echo of the Valeria Plame brouhaha, the invasion of privacy claim was based primarily on the public disclosure of the plaintiffs' status as undercover cops.  Thus the issue of "newsworthiness" was squarely, albeit unusually, presented: are the identities of undercover cops accused of sexual misconduct newsworthy?

(In New Mexico, as in many states, "newsworthiness" is not a defense; instead, the plaintiff has the burden of proving the opposite, i.e., "lack of legitimate public interest in the information.").

Because the courts generally agree that allegations of police misconduct are worthy of public interest, and thus cannot form the basis for an invasion of privacy claim, the plaintiffs in Alvarado argued that there should be an exception for undercover officers.  The court declined to create such an exception, explaining:

To the extent First Amendment law informs our determination of whether Alvarado and Flores can allege facts showing that publicity of their identities and undercover status in the context of the alleged sexual assault was not a matter of public interest, we are among a number of courts that have found that police misconduct allegations specifically and officer qualifications generally are a matter of public interest in First Amendment analysis.

*  *  * [W]e can find no precedent for such an exception, and we are not inclined to create one on policy grounds, despite our concerns about the safety of undercover officers and the need to avoid disincentives for entering the profession.

The lawyers for the cops argued by analogy to the same federal criminal statute at issue in the Valeria Plame scandal, namely, 50 U.S.C. sec. 421, which criminalizes the disclosure of the identity of covert intelligence agents.  The Tenth Circuit had no trouble distinguishing that federal criminal law from New Mexico's tort law.  (See discussion at pages 19-20 of the slip opinion.)

Thus "fair use" -- like the rose in Juliet's famous analogy -- functions just as well under the name "newsworthiness."

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