Katz, Andrew S.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 8Number 1 October, 1977 Article 1010-1977Supreme Court Decisions: Hugo Zacchini: Flyingin the Face of Press PrivilegeAndrew S. KatzFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationKatz, Andrew S. (1977) "Supreme Court Decisions: Hugo Zacchini: Flying in the Face of Press Privilege," University of Baltimore LawForum: Vol. 8 : No. 1 , Article 10.Available at: http://scholarworks.law.ubalt.edu/lf/vol8/iss1/10Once again the Court refused to recog-nize an absolute and unqualified executive privilege in a president. To allow such a privilege would have permitted Nixon to withhold tapes from judicial officers which would roadblock the legal proceed-ings connected with Watergate. The opinion distinguished legitimate constitutional privileges relating to mili-tary, diplomatic, and national security from mere political expedience. The Court found that most of the presidential materials related more to a public interest in Watergate than to national security or diplomacy. The Court's disbelief in Nix-on's claim for executive privilege cover-ing all the materials was bolstered by his demonstrated lack of personal familarity with all but a few of his presidential materials. Since the bulk of the recordings and papers related to executive activities in which the public had an interest, the Court found that the tapes were not solely of a personal nature and therefore could not remain under Nixon's exclusive con-trol. The Court agreed that had the former president's materials been of such a type, unrelated to Nixon's public activities, their removal from public scrutiny would be justified. Conceding that Nixon's privacy deserved some legal protection, the Court believed the PRMPA provided adequate safeguards. Under the Presidential Recordings Act, the materials of former presidents are subjected to screening pro-cedures by government archivists. After screening, purely private information is to be returned to the chief executive and cannot be publicly disseminated. Even Nixon's brief acknowledged how limited the privacy interest of a public official would be in citing New York Times v. Sullivan, 376 U.S. 254 (1964), which holds that any individual entering public life voluntarily surrenders some rights of privacy. With a touch of irony, Nixon, who ad-vanced his early political career by de-nouncing the Communist Party, relied upon cases brought by members of the Party in his own Fourth Amendment argu-ment. These cases were brought in response to unreasonable government searches of Communist Party members ~ THE FORUM homes for extra evidence, unrelated to the offenses with which they were charged. The Court was not persuaded by the argument that the net effect of the PRMPA amounted to an unreasonable search and seizure of Nixon's property. UnCier the Act, the scope of the archivists' search and investigation must be restricted. Nixon had stated an alternative of screening a president's materials via judicial review, but the court stated that this would subject him to greater public scrutiny. Nixon's claim that the PRMPA violated his First Amendment rights was also re-jected. He claimed the Act restricted his freedom to participate freely in political activity, would hamper his ability to speak freely, and would prohibit him from taking inconsistent positions. The Court expressed confidence in the screening process of the PRMPA and, in his concur-ring opinion, Justice Powell observed that the original District Court decision recommended actual involvement by Nix-on in that process. Finally, Nixon urged the Act violated the Bill of Attainder Clause. He equated the legislation with the rendering of a guilty verdict and with subsequent punishment without the benefit of a trial. The Court admitted that Title I of the Act was created specifically to control Nixon's materials, but, the Court was quick to add that Title II dealt with recommendations for future presidential materials. Title I was not considered punishment in the tra-ditional sense, since Nixon could still have access to his materials. After review-ing the Congressional committee reports, the Court concluded that the legislative intent was merely to negate the Nixon-Sampson agreement and not to punish Nixon. Undaunted by this legal setback, Nixon will have yet another case argued before the Court this term. The issue will be whether his presidential tapes, especially those involving the Watergate coverup, may be broadcasted over the airwaves for public consumption. Hugo Zacchini: Flying In The Face Of Press Privilege by Andrew S. Katz Carnival entertainer Hugo Zacchini found that even a man who earns his liv-ing by being shot from a cannon can have redress of his legal grievances in the na-tion's highest court. The United States Supreme Court, by narrowing the scope of news media privilege provided by the First Amendment, gave the "human can-nonball" a second chance to seek damages for a tortious appropriation of his performance in Zacchini v. Scripps-Howard Broadcasting Co., 97 S.C!. 2849 (1977). Zacchini's appearance as petitioner in the case arose from an incident occuring in August, 1972. He was then engaged to perform his "human cannonball" act on a regular basis at the Geagua County fair in Burton, Ohio. A freelance reporter for a local television station filmed the IS-sec-ond act, which involved Zacchini being fired from a cannon into a net some 200 feet away. Prior to the performance the reporter was warned by Zacchini not to make the film. The film clip was shown that evening on the 11 0' clock news, ac-companied by favorable commentary. The performer subsequently brought an action in state court for damages against the station's operator, Scripps-Howard Broadcasting Company. His complaint alleged that the carnival act was "in-vented by his father and . . . performed only by his family for the last fifty years . .. ," that the Broadcasting Company "showed and commercialized the film of his act without his consent ... ," and that this conduct was an "unlawful appropria-tion of plaintiff's profeSSional property." 97 S.C!. at 2851. The defendant's motion for summary judgment was granted by the trial court and the Court of Appeals of Ohio reversed, holding that Zacchini's complaint stated a cause of action for con-version and for common law copyright in-fringement. The Supreme Court of Ohio's opinion was looked to for the rule of law in the case. Recognizing Zacchini's right to the publicity value of his performance, the Ohio court nevertheless found the broad-caster was immune from suit because" [al TV station has a privilege to report in its newscasts matters of legitimate public in-terest which would otherwise be protected by an individual's right of publicity .... " 97 S.CT. at 2852. Judgment was ren-dered for Scripps-Howard. Certiorari was granted by the Supreme Court to consider whether the First and Fourteenth Amendments immunized Scripps-Howard from damages for its alleged infringement of Zacchini's state-law "right of publicity." Supreme Court review was permitted because, in reaching its decision, the Supreme Court of Ohio had relied heavily on the First Amend-ment principles established in Time, Inc. v. Hill, 385 U.S. 374 (1967) and New York Times v. Sullivan, 376 U.S. 374 (1964). To the Ohio Court these cases meant that the press is privileged to report mat-ters of legitimate public interest even if such reports intrude on private matters, concluding that the press is Similarly im-munized " ... When an individual seeks to publicly exploit his talents while keeping the benefits private." 97 S.Ct. at 2853. However, the United States Supreme Court reversed the Ohio decision to the extent it had found immunity for Scripps-Howard required by the First and Four-teenth Amendments. Justice White, writing for the majority, reviewed these landmark defamation cases and concluded they do not recog-nize a media privilege to televise an enter-tainer's entire act without his consent. These cases involved persons seeking damages for being 1'laced in a "false "LET'S GO TO CURLANDER'S FOR OUR LAW BOOKS - AND SOMETHING FOR THE SWEET TOOTH." • 30 day credit accepted for law students now available light;" nobody with a name having com-mercial value and no claim to a right of publicity was involved. The State's in-terest in permitting a right of publicity is in protecting the proprietary interest of the individual in his act, partly to en-courage him to continue entertaining. The interest protected in a defamation suit is that of reputation. In the final analysis, the opinion notes, the entertainer is not concerned with how much publication has been done, as in a case of defamation, but rather "who gets to do the publishing." 97 S.Ct. at 2856. The opinion expressed concern about the substantial threat to the economic value of Zacchini's performance posed by the broadcast of his entire act without compensation. "The effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee," the opinion declared. 97 S.Ct at 2857. Although the Court was unwilling to draw the line between media reports that are protected and those that amount to an "appropriation," it was certain that "the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his con-sent." 97 S.Ct at 2857. The opinion con-cluded that even though the First and Fourteenth Amendments do not require it, the State of Ohio could privilege the press as a matter of its own law. • case and horn books • Maryland rules of procedure • uniform system of citation • gilberts and prepared briefs • dictionaries Phone Orders 539-4716 Curlander Law Book Co. STORE HOURS: 8:30 a.m.-4:45 p.m. 525 N. Charles St. Baltimore, Md. 21201 OCTOBER, 1977 [!2J ACROSS: 2. Seize Property 8. Dull 11. Against 15. Unwritten 18. City and Falls 20. Bobby Orr's Milieu 22. Not Them 23. Computerized Law 25. Follow 26. Periods of Decline 30. Loathes 34. Eight: Prefix 35. Although 36. Impediment 41. Annually: Lat. 42. With In, Against the Thing ~ THE FORUM 44. Some Law Students' Goal 45. Reg. Nurse 46. Greek Portico 47. Rarity During Exams 49. Imitation: Suffix 50. Capable; Socially Correct 52. Basics 55. Louis XIV; Early Times 56. Characteristic of: Suffix 57. Extort 60. Mail on the Farm: Abbr. 61. Menacing Epithet 64. fust Recent 65. Term Describing Transfer of Property to Church 69. Owns rvrum 70. Immediately (in a Hospital) 71. Wonder St./ Land of Opportunity 72. Brings into Harmony 74. Water State 75. Professionally Immoral 77. Source of Ruin 79. Parsley Sprig, Lemon Wedge 80. Pater: French 81. Chief Support 82. Des fuines St. 84. Law Enforcers in San Diego 87. First Chief Justice 89. Executive Overseer: Abbr. 91. Old Nuclear Watchdog 93. Water Lily 94. Noncontractual Civil Wrong 95. Is Operating 97. Land Extension 98. Dean of 94 Across 101. Blood Collecting Org. 102. Word with Tears or Rock 105. 43d Element: Abbr. 106. Relating to a Nonparty Lawsuit 109. Blinker 110. Media Blurb Ill. Inability to Articulate Words 113. Debt Acknowledgment 114. Mutilate 116. Roots 117. Sutured 118. Beer Crustacean 120. Jr. Officers 122. Position Preposition 123. Devisee is One 124. Estate, Realm 125. Gratifies DOWN 1. Liable to be Assessed 2. Indefinite Article 3. Row 4. 73d Element: Abbr. 5. Mature 6. Criterion of Judgment 7. Time Units: Abbr. 8. Compass Direction 9. Suffix for Inert Gas 10. Since 12. Pariah 13. Remorse 14. Action for Breach of Parol or Simple Contract IS. Aroma Detection 16. Regarding 17. Printed Defamation 19. Gold: Lat. 21. Wt. Unit 24. Catchword 27. Hit 28. That One 29. Andrea ,...-____ = 31. Comb. Form of Ear 32. Bush 33. Wil11ess Decedents 37. Casual 38. Speaker's Platform 39. In the Manner That 40. Value 43. Elongated Fish 48. Perjurers 49. And so Forth SO. Bitter Cold 51. Con/disjunctive 53. Beneath Earth's Surface 55. Chided 58. Intermediate 59. Fathers 62. Possesses Not: Contraction 63. Groups of Islands 66. Affected Pose 67. From Naples: Abbr. (I ~ i 11111111J111110~ 68. Worthless 73. Denial 74. Exists 75. Capitals 76. Renounce 77. Preliminary Degree 78. In the Meantime: Lat. 81. Possessory Adjective 83. Antitank: Abbr. 85. Allegations 86. Rodents, Family Gliridae 88. Attribute 89. Depresses 90. Wire Service 91. City Habitat: Abbr. 92. Silver State: Abbr. 94. Group of Performers 96. First Real Law School Hiatus 97. Strike Money 99. Unstressed Vowel 100. Must Not: Contraction 102. Type of App. Review 103. Climate 104. Site of First Eviction 107. Equality 108. Toward 112. Pin Down; Throw 115. Bass or Molson 119. Type of Year 121. English Diarist's Initials OCTOBER, 1977 ~ 

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Supreme Court Decisions: Hugo Zacchini: Flying in the Face of Press Privilege

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