No. 73-938
IN THE
Supreme Court of the United States
---------------------------Martin Cohn
v.
Cox Broadcasting Corporation, et al.
Appeal from the Supreme Court of Georgia
---------------------------LEGAL BRIEF
---------------------------Brandon Howell
Date Case Decided: March 3, 1975
Date of this Brief: November 19, 2014
I
II
TABLE OF CONTENTS
Facts of the Case.......................................................................... IV
The Supreme Court Decision ....................................................... V
History of the Case ...................................................................... VI
Issues ......................................................................................... VIII
The Majority Opinion................................................................. IX
Other Opinions. ............................................................................. X
Conclusion ................................................................................ XIII
III
FACTS OF THE CASE
A 17-year-old girl from Sandy Springs, Georgia was a victim of rape and did not survive
the attack in August 1971. Her father, Martin Cohn, filed an invasion of privacy suit against Cox
Broadcasting Corporation when a reporter broadcast her name1. The suit was based on Ga. Code
Ann Section: 26-9901 which made it a crime to publish or broadcast the name or identity of a
rape victim2. A reporter had obtained the victim’s name from the indictments which were public
records available for inspection3. The trial court rejected the claims by Cox Broadcasting
Corporation that the broadcast was privileged under the First and Fourteenth Amendments and
ruled in favor of Cohn4. Although lawyers for Cox Broadcasting Corporation appealed the
decision, the Georgia Supreme Court upheld the lower court’s decision5. This resulted in Cox
Broadcasting Corporation challenging the law and petitioning the U.S. Supreme Court to review
the legality of the Georgia statute6.
1
Cox Broadcasting Corp. v. Cohn | Casebriefs. (n.d.). Retrieved from
http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/privacy/
cox-broadcasting-corp-v-cohn-2/
2
Id.
3
Tedford, T., & Herbeck, D. (2009, January 1). Cox Broadcasting Corp. v. Cohn (1975).
Retrieved from http://www.bc.edu/bc_org/avp/cas/comm/free_speech/cox.html
4
Id.
5
Cox Broadcasting Corp. v. Cohn - The Circumstances. (n.d.). Retrieved from
http://law.jrank.org/pages/23272/Cox-Broadcasting-Corp-v-Cohn-Circumstances.html
6
Id.
IV
THE SUPREME COURT DECISION
8 of Justices in the Majority
8 of Justices Concurring
Warren E. Burger
William O. Douglas
William J. Brennan, Jr.
Potter Stewart
Byron R. White
Thurgood Marshall
Harry A. Blackmun
Lewis F. Powell, Jr.
1 of Justices Dissenting
William H. Rehnquist
Author of the Majority Opinion
Byron R. White
Authors of the Other Opinions
William O. Douglas
Lewis F. Powell, Jr.
William H. Rehnquist
V
HISTORY OF THE CASE
The appellee, Martin Cohn, filed suit against a WSB-TV and its owner, Cox Broadcasting
Corporation (appellant), after one of their reporters, Thomas Wassell, broadcast the name of his
17-year-old daughter who died after being a victim of rape. The victim had been at a party
where alcohol was served. An autopsy revealed that she had choked on her own vomit but also
had been raped7. Six teens that were at the party were charged several months later with rape8.
In April 1972, five pleaded guilty and one not guilty9. It was during that day that Wassell
learned the name of the victim by being granted the ability to exam the indictments in the
courtroom. Those indictments were public records10. Martin Cohn, appellee, filed suit in May
1972 asking for monetary damages against the appellants stating that his right to privacy had
been invaded by the television station broadcasting his daughter’s name11. The appellants
acknowledged the broadcast but claimed they were privileged under both state law and the First
and Fourteenth Amendments12. The trial court stood by the Georgia statute stating that it gave
civil remedy to those injured by its violation and granted summary judgment to Cohn13. Lawyers
for Cox Broadcasting Corporation appealed the decision; however, the Supreme Court of
Georgia held that the trial court had erred in allowing the Georgia statute to give a civil cause of
7
Spurlock, J. (n.d.). The Effects of the Cox Broadcasting Corp. v. Cohn Decision: Almost Four
Decades Later. Retrieved from http://commlawreview.org/Archives/v14i1/
CLR_Cox_Broadcasting.pdf
8
Id.
9
Tedford, T., & Herbeck, D. (2009, January 1). Cox Broadcasting Corp. v. Cohn (1975).
Retrieved from http://www.bc.edu/bc_org/avp/cas/comm/free_speech/cox.html
10
Id.
11
Id.
12 Id.
13 Id.
VI
action and therefore did not consider the constitutionality of the statute14. The end result was
that the court found that the identity of the rape victim did not rise to the level of public interest
that would afford the appellant constitutional protection15.
After their failed appeal, Cox Broadcasting Corporation filed suit challenging the law. It
petitioned the U. S. Supreme Court to review the legality of the Georgia statute16. Does a state
law, that prohibits the publication of the name of a rape victim (even if it is publicly revealed
information) an invasion of privacy, violate the First and or Fourteenth Amendment17. Justice
Byron R. White wrote the majority opinion which was an 8-1 vote. The Supreme Court reasoned
that the name of the rape victim was obtained by proper means, and that a crime committed and
the prosecution of that crime is of public concern. Therefore, the appellant is protected by the
First Amendment freedom of the press in its reporting of the matter18. The U.S. Supreme Court
overturned the ruling of the Georgia Supreme Court.
14
Cox Broadcasting Corp. v. Cohn | Casebriefs. (n.d.). Retrieved from
http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/privacy/coxbroadcasting-corp-v-cohn-2/
15
Id.
16
Cox Broadcasting Corp. v. Cohn - The Circumstances. (n.d.). Retrieved from
http://law.jrank.org/pages/23272/Cox-Broadcasting-Corp-v-Cohn-Circumstances.html
17
Harrington, S. (2013, December 9). Cox v. Cohn: A case brief. Retrieved from
http://samharrington.net/cox-v-cohn-a-case-brief/
18
Cox Broadcasting Corp. v. Cohn | Casebriefs. (n.d.). Retrieved from
http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/privacy/coxbroadcasting-corp-v-cohn-2/
VII
ISSUES OR QUESTIONS
One issue was whether a criminal statute regarding the reporting of the identity of the
victim of a crime precludes a media defendant from reporting on that issue when it is of public
concern19. The issue presented to the U. S. Supreme Court was whether a State may extend a
cause of action for damages for invasion of privacy caused by the publication of the name of a
deceased rape victim which was publicly revealed in connection with the prosecution of the
crime consistently with the First and Fourteenth Amendments20. Lastly, Justice Rehnquist wrote
a dissenting opinion. The issue that he had was that the Supreme Court of Georgia did not give a
“final judgment or decree”. He felt that his court should send the case back to them for more
“jurisdiction”21.
19
Cox Broadcasting Corp. v. Cohn | Casebriefs. (n.d.). Retrieved from
http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/privacy/coxbroadcasting-corp-v-cohn-2/
20
Tedford, T., & Herbeck, D. (2009, January 1). Cox Broadcasting Corp. v. Cohn (1975).
Retrieved from http://www.bc.edu/bc_org/avp/cas/comm/free_speech/cox.html
21
Harrington, S. (2013, December 9). Cox v. Cohn: A case brief. Retrieved from
http://samharrington.net/cox-v-cohn-a-case-brief/
VIII
THE MAJORITY OPINION
The ratio decidendi of the Supreme Court was that the Georgia statute violated the
Constitution. The case was argued on November 11, 1974. An 8-1 vote in favor of Cox
Broadcasting Corporation was decided on March 3, 1975. Justice Byron White delivered the
opinion of the Court stating, “This right of the press, to publicize public information was of
critical importance to America, because it allows American citizens to be aware of and make
judgments on public business”22. Justice White stated, “Restricting the media as the Georgia law
did was a dangerous encroachment on press freedom as it ‘would invite timidity and selfcensorship’”23. According to White, “The news media is an important resource for citizens
which allow them to scrutinize government proceedings. The commissions and adjudication of
crimes are issues relevant to public interest”24. Justice White also noted that “in the
development of the privacy right, the Court has held that the interests of privacy ‘fade’ in cases
where controversial ‘information already appears on the public record’”25.
22
Harrington, S. (2013, December 9). Cox v. Cohn: A case brief. Retrieved from
http://samharrington.net/cox-v-cohn-a-case-brief/
23
Id.
24
COX BROADCASTING CORPORATION v. COHN. (n.d.). Retrieved from
http://www.oyez.org/cases/1970-1979/1974/1974_73_938#mla
25
Id.
IX
OTHER OPINIONS
Justice Lewis F. Powell, Jr. concurred with the majority; however, he wrote a regular
concurrence to state his opinion. Powell agrees with “the Court’s determination that the First
Amendment proscribes imposition of civil liability in a privacy action predicated on the truthful
publication of matter contained in open judicial records.26” His opinion differs from the Court’s
regarding the “role of truth in defamation actions brought by private citizens.27” Powell stated,
“the Court identifies as an ‘open’ question the issue of ‘whether the First and Fourteenth
Amendments require that truth be recognized as a defense in a defamation action brought by a
private person as distinguished from a public official or a public figure’.28” Justice Powell
concluded that a more recent case “Gertz v. Welch, 418 U. S. 323 (1974), largely resolves that
issue.29”
In a written special concurrence, Justice William O. Douglas agrees “that the state
judgment is final” and “agrees with the reversal of the Georgia court.30” He referred to the New
Jersey State Lottery Comm’n v. United States, 491 F.2d 219 (CA3 1974) case stating that “for
the reasons I stated in my dissent from our disposition of that case, there is no power on the part
of government to suppress or penalize the publication of ‘news of the day’.31”
26
Tedford, T., & Herbeck, D. (2009, January 1). Cox Broadcasting Corp. v. Cohn (1975).
Retrieved from http://www.bc.edu/bc_org/avp/cas/comm/free_speech/cox.html
27
Id.
28
Id.
29
Id.
30
Cox Broadcasting Corp. V. Cohn (1974). (n.d.). Retrieved from
http://supremecourtopinions.wustl.http://supremecourtopinions.wustl.edu/
index.php?rt=pdfarchive/details/1146edu/files/opinion_pdfs/1974/73-938.pdf
31
Id.
X
One Justice wrote a jurisdictional dissent. It was Justice William H. Rehnquist. He
wrote that his opinion was that “the decision which is the subject of this appeal is not a ‘final’
judgment or decree, as that term is used in 28 U. S. C. § 1257, I would dismiss this appeal for
want of jurisdiction.32” This was his basis for dissent.
32
Cox Broadcasting Corp. V. Cohn (1974). (n.d.). Retrieved from
http://supremecourtopinions.wustl.http://supremecourtopinions.wustl.edu/
index.php?rt=pdfarchive/details/1146edu/files/opinion_pdfs/1974/73-938.pdf
XI
XII
CONCLUSION
The Georgia statute is well intentioned in protecting the victim. However, in the case of
Cohn v. Cox Broadcasting, it was a high profile case demanding media attention. It was not until
several months after the crime and death of the victim that her name became part of the public
record. When the reporter asked to review the records, they were freely provided to him without
any removal of the victim’s name. Cohn had filed suit based on invasion of privacy. Although
the trial court and Georgia Supreme Court upheld the Georgia statute in regards to Martin
Cohn’s case, the U. S. Supreme Court reversed the decision based on the fact that the victim’s
name was obtained by proper legal means and was a case of public interest. In this particular
case, the Appellant was protected by the First Amendment freedom of the press in the reporting
of this crime.
Respectfully submitted,
Brandon Howell
XIII
XIV