Delineating the exact contours of the constitutional privilege of the press in publication of private facts is, however, particularly problematic, because this privilege has not received extensive attention from the United States Supreme Court. The high court has considered the issue in only one case involving the common law public disclosure tort, Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 (Cox Broadcasting), and its holding in that case was deliberately and explicitly narrow. In Cox Broadcasting, a criminal court clerk, during a recess in court proceedings relating to a rape-murder case, allowed a television reporter to see the indictment, which contained the name of the victim. The television station broadcast an account of the court proceedings, using the victim' s name; the victim' s father alleged the broadcast to be a tortious publication of private facts. (Id. at pp. 471-474.) The Georgia Supreme Court, relying on a Georgia statute prohibiting publication or broadcast of a rape victim' s identity, held the broadcast of the victim' s name was not privileged as newsworthy; the court viewed the statute as showing that the victim' s identity was not a matter of legitimate public concern. The state court further held the statute did not itself infringe on the station's First Amendment rights. (Id. at p. 475.)

The federal high court reversed, but -- recognizing the important interests on both sides of the newsworthiness question -- proceeded cautiously and on limited grounds. "Rather than address the broader question of whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments, or to put it another way, whether the State may ever define and protect an area of privacy free from unwanted publicity in the press, it is appropriate to focus on the narrower interface between press and privacy that this case presents, namely, whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records -- more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection. We are convinced that the State may not do so." (Cox Broadcasting, supra, 420 U.S. at p. 491.) For this holding the court relied on the "responsibility of the press to report the operations of government" (id. at p. 492), including judicial proceedings regarding crimes, and the premise that "[b]y placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served" (id. at p. 495).

A more recent case cited by defendants, The Florida Star v. B. J. F. (1989) 491 U.S. 524 (Florida Star), reached a similar conclusion with regard to a Florida statute that, like the Georgia law in Cox Broadcasting, criminally punished the publication of a sexual assault victim' s name. In Florida Star, however, the plaintiff' s civil action was not pled as the common law tort for publication of private facts, but rather as a negligence action (with the criminal statute used as predicate for application of the negligence per se doctrine), a distinction the high court relied upon in holding liability to be constitutionally barred. (Id. at p. 539.) Here, again, the high court chose to move cautiously, "relying on limited principles that sweep no more broadly than the appropriate context of the instant case." (Id. at p. 533.) The limited principle relied upon in Florida Star was that "'[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.' " (Ibid.) Like Cox Broadcasting, the Florida Star decision provides little general guidance as to what is, and is not, "a matter of public significance" -- what is newsworthy, in other words -- or as to when, if ever, the protection of private facts against public disclosure should be considered a sufficiently important state interest to justify civil liability pursuant to the common law tort. As in Cox Broadcasting, moreover, the Florida Star newspaper had obtained the victim's name from a public records source, in this case a police report made available to the press. The high court's holding that publication was constitutionally protected again rested in large part on the fact the government had, by making the information available to the press, impliedly determined its dissemination was in the public interest, and could not then punish a newspaper for "rely[ing] on the government's implied representations of the lawfulness of dissemination." (Florida Star, supra, 491 U.S. at p. 536.)

One federal court has observed that, despite the limited scope of their holdings, "the implications of [Cox Broadcasting and Florida Star] for the branch of the right of privacy that limits the publication of private facts are profound . . . . The Court must believe that the First Amendment greatly circumscribes the right even of a private figure to obtain damages for the publication of newsworthy facts about him, even when they are facts of a kind that people want very much to conceal." (Haynes v. Alfred A. Knopf, Inc. (7th Cir. 1993) 8 F.3d 1222, 1232.) We agree the high court's decisions are instructive on the strength of First Amendment protection for truthful publication of private facts. More particularly, they establish that truthful reporting on current judicial proceedings, using material drawn from public records, is generally within the scope of constitutional protection. The decisions do not, however, enunciate a general test of newsworthiness applicable to other factual circumstances or provide a broad theoretical basis for discovery of such a general constitutional standard. (See Woito & McNulty, The Privacy Disclosure Tort and the First Amendment: Should the Community Decide Newsworthiness? (1978) 64 Iowa L.Rev. 185, 199-202.)

Newsworthiness -- constitutional or common law -- is also difficult to define because it may be used as either a descriptive or a normative term. "Is the term 'newsworthy' a descriptive predicate, intended to refer to the fact there is widespread public interest? Or is it a value predicate, intended to indicate that the publication is a meritorious contribution and that the public' s interest is praiseworthy?" (Comment, The Right of Privacy: Normative-Descriptive Confusion in the Defense of Newsworthiness (1963) 30 U. Chi. L.Rev. 722, 725.) A position at either extreme has unpalatable consequences. If "newsworthiness" is completely descriptive -- if all coverage that sells papers or boosts ratings is deemed newsworthy -- it would seem to swallow the publication of private facts tort, for "it would be difficult to suppose that publishers were in the habit of reporting occurrences of little interest." (Id. at p. 734.) At the other extreme, if newsworthiness is viewed as a purely normative concept, the courts could become to an unacceptable degree editors of the news and self-appointed guardians of public taste.

The difficulty of finding a workable standard in the middle ground between the extremes of normative and descriptive analysis, and the variety of factual circumstances in which the issue has been presented, have led to considerable variation in judicial descriptions of the newsworthiness concept. As one commentator has noted, the newsworthiness test "bears an enormous social pressure, and it is not surprising to find that the common law is deeply confused and ambivalent about its application." (Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort (1989) 77 Cal.L.Rev. 957, 1007.) Without attempting an exhaustive survey, and with particular focus on California decisions, we review some of these attempts below.

In the first California privacy case, Melvin v. Reid, supra, 112 Cal.App. 285, the defendants, using the plaintiff' s true maiden name, had produced and exhibited a motion picture based on events of the plaintiff' s life, including her having been a prostitute many years earlier. (Id. at pp. 286-287.) The appellate court held the use of the plaintiff' s true name "was unnecessary and indelicate, and a willful and wanton disregard of that charity which should actuate us in our social intercourse." (Id. at p. 291.) In short, such use was "not justified by any standard of morals or ethics known to us." (Id. at p. 292.)

This court took a similar, albeit less overtly moralistic, approach in Gill v. Curtis Publishing Co., supra, 38 Cal.2d 273 (Gill v. Curtis), involving a Ladies Home Journal article entitled Love that used a photograph of the plaintiffs embracing to illustrate the "wrong" kind of love, "founded upon 100 per cent sex attraction." (Id. at p. 275.) As the Court of Appeal had done in Melvin v. Reid, supra, 112 Cal.App. 285, we attempted to distinguish a disclosure of private facts that was closely connected to the newsworthiness of the publication from one that superfluously exposed the subject' s private life to public view. Assuming the article's contents "to be within the range of public interest in dissemination of news, information or education," still "the public interest did not require the use of any particular person's likeness nor that of plaintiffs without their consent." (Gill v. Curtis, supra, at p. 279.) Although we therefore did not need to decide on a general standard of newsworthiness, we noted that "[f]actors deserving consideration may include the medium of publication, the extent of the use, the public interest served by the publication, and the seriousness of the interference with the person' s privacy." (Id. at pp. 278-279.)

A year later, without explicitly overruling Gill v. Curtis, we reached a seemingly inconsistent conclusion in another case involving the same publication. (Gill v. Hearst Publishing Co., supra, 40 Cal.2d 224 (Gill v. Hearst).) We held no action for invasion of privacy would lie solely for publication of the photograph of the plaintiffs embracing. The photograph itself, we reasoned, enjoyed some measure of constitutional protection despite its slight or nonexistent informational value. "Apparently the picture has no particular news value but is designed to serve the function of entertainment as a matter of legitimate public interest. [Citation.] However, the constitutional guarantees of freedom of expression apply with equal force to the publication whether it be a news report or an entertainment feature . . . ." (Id. at p. 229.) [FN 5] The author of Gill v. Curtis dissented from this portion of Gill v. Hearst, arguing, "it should be quite obvious that there is no news or educational value whatsoever in the photograph alone. It depicts two persons (plaintiffs) in an amorous pose. . . . While some remote news significance might be attached to persons in such a pose on the theory that the public likes and is entitled to see persons in such a pose, there is no reason why the publisher need invade the privacy of John and Jane Doe for his purpose. He can employ models for that purpose and the portion of the public interested will never know the difference but its maudlin curiosity will be appeased." (Gill v. Hearst, supra, 40 Cal.2d at p. 232 (conc. and dis. opn. of Carter, J.).)

[FN5] We went on to hold that publication of the photograph, taken at the plaintiffs' ice cream booth in the Los Angeles Farmers' Market, "did not disclose anything which until then had been private," nor was the depiction of the plaintiffs objectionable or offensive to a reasonable person. (Gill v. Hearst, supra, 40 Cal.2d at pp. 230-231.)

This court next addressed the question in Kapellas v. Kofman, supra, 1 Cal.3d 20 (Kapellas), involving a newspaper editorial that allegedly violated the privacy rights of the children of a woman running for public office by revealing certain juvenile offenses and peccadilloes for which the children had been arrested or detained. Drawing from academic comment and the two Gill decisions, we attempted a general analysis involving the balancing of three factors: "In determining whether a particular incident is 'newsworthy' and thus whether the privilege shields its truthful publication from liability, the courts consider a variety of factors, including the social value of the facts published, the depth of the article' s intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety." (Kapellas, supra, at p. 36.) Applying these factors, we articulated a general rule favoring dissemination of relevant information regarding candidates for public office, including at least some information about their families: "Generally, courts will be most reluctant to impede the free flow of any truthful information that may be relevant to a candidate's qualifications for office. Although the conduct of a candidate' s children in many cases may not appear particularly relevant to his qualifications for office, normally the public should be permitted to determine the importance or relevance of the reported facts for itself. If the publication does not proceed widely beyond the bounds of propriety and reason in disclosing facts about those closely related to an aspirant for public office, the compelling public interest in the unfettered dissemination of information will outweigh society' s interest in preserving such individuals' rights to privacy." (Id. at pp. 37-38.) Following the articulated principle, we held the information disclosed, if true, was absolutely privileged. (Id. at p. 39.)

We employed the Kapellas factors in Briscoe v. Reader's Digest Association, Inc., supra, 4 Cal.3d 529 (Briscoe). A magazine article on truck hijacking included a description of such a crime the plaintiff had committed 11 years earlier, using the plaintiff's true name. Conceding that "reports of the facts of past crimes are newsworthy" (id. at p. 537), we nonetheless concluded a jury could reasonably find the plaintiff's identity as a former hijacker to be nonnewsworthy. The identification of a rehabilitated person as a former criminal was, under the circumstances, of "minimal social value" (id. at p. 541), would tend to interfere with the state's interest in rehabilitating criminals and returning them to society, and could be regarded as a serious intrusion on private matters (id. at p. 542). [FN 6]

[FN6] Our discussion in Briscoe largely reflects the correct view that newsworthiness is a complete bar against liability for publication of truthful private facts. In one passage, however, we articulated the possibly different view that "a truthful publication is constitutionally protected if (1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community' s notions of decency." (Briscoe, supra, 4 Cal.3d at p. 541.) We derived this dual standard from a dictum in Time, Inc. v. Hill, supra, 385 U.S. at page 383, footnote 7. The Time footnote, however, concerned newsworthiness as a defense to liability under a New York statute and merely suggested that such a defense may not exist when the publication is "'so intimate and so unwarranted . . . as to outrage the community's notions of decency.'" (Ibid.) Rather than establishing a requirement separate from newsworthiness, the Time dictum appears to fit within the analysis of newsworthiness as a balancing of intrusion against justification that we adopted in Kapellas and applied in Briscoe.

In Briscoe, while employing Kapellas's analysis of competing interests, we also recognized the strong constitutional policy against fact-dependent balancing of First Amendment rights against other interests. "Because the categories with which we deal -- public and private, newsworthy and nonnewsworthy - have no clear profile, there is a temptation to balance interests in ad hoc fashion in each case. Yet history teaches us that such a process leads too often to discounting society' s stake in First Amendment rights. [Citation.] We therefore strive for as much predictability as possible within our system of case-by-case adjudication, lest we unwittingly chill First Amendment freedoms." (Briscoe, supra, 4 Cal.3d at pp. 542-543, fn. 18.) We believed, however, the danger of chilling future expression by our holding in Briscoe was slight because the facts of the case clearly negated protection. (Ibid.) Our holding of possible liability in that case, moreover, was expressly limited to narrow circumstances to be established at trial: that the plaintiff, having been punished for his past crime, was now "a rehabilitated member of society" ; that identification of him as a former criminal was not only highly offensive but "injurious" to his efforts at leading an ordinary law-abiding life; that the publication was made with reckless disregard for its offensiveness; and that the defendant had no "independent justification" for printing plaintiff's identity. (Id. at p. 543.)

In the most recent of this court's decisions on publication of private facts, we applied the same general analysis of newsworthiness as in Briscoe but distinguished that case on its facts. (Forsher v. Bugliosi, supra, 26 Cal.3d at pp. 809-813 (Forsher).) We held the defendant's book, Helter-Skelter, did not invade the plaintiff's privacy by mentioning his name in connection with the disappearance of an attorney who had represented a defendant in the highly publicized Tate-LaBianca killings. Briscoe, we observed, was "an exception to the more general rule that 'once a man has become a public figure, or news, he remains a matter of legitimate recall to the public mind to the end of his days.'" (Forsher, supra, at p. 811.) As the exceptional reasons for protecting Briscoe's identity did not apply to Forsher, we concluded the identification of Forsher in connection with the death of an attorney formerly involved in the case was of continuing public concern at the time of publication. (Id. at p. 813.)

Our prior decisions have not explicitly addressed the type of privacy invasion alleged in this case: the broadcast of embarrassing pictures and speech of a person who, while generally not a public figure, has become involuntarily involved in an event or activity of legitimate public concern. We nonetheless draw guidance from those decisions, in that they articulate the competing interests to be balanced. First, the analysis of newsworthiness does involve courts to some degree in a normative assessment of the "social value" of a publication. (Kapellas, supra, 1 Cal.3d at p. 36.) All material that might attract readers or viewers is not, simply by virtue of its attractiveness, of legitimate public interest. Second, the evaluation of newsworthiness depends on the degree of intrusion and the extent to which the plaintiff played an important role in public events (ibid.), and thus on a comparison between the information revealed and the nature of the activity or event that brought the plaintiff to public attention. "Some reasonable proportion is . . . to be maintained between the events or activity that makes the individual a public figure and the private facts to which publicity is given. Revelations that may properly be made concerning a murderer or the President of the United States would not be privileged if they were to be made concerning one who is merely injured in an automobile accident." (Rest.2d Torts, § 652D, com. h, p. 391.) [FN 7]

[FN7] Justice Brown, in her concurring and dissenting opinion, argues the lawfulness or offensiveness of the news media's conduct, discussed in part II of this opinion (post, at p. 34 et seq.), is "clearly relevant" not only to the tort of intrusion into private places, conversations or other matters, but also to whether the material published is "newsworthy." (Conc. and dis. opn. of Brown, J., post, at p. 5, fn. 2.) Citing no other authority, Justice Brown attempts to find support for her argument in Kapellas, supra, 1 Cal.3d at page 36. The court in Kapellas, however, did not mention or address any issue arising from the legality of the manner in which information had been gathered. Indeed, the facts published in Kapellas were presumed by the court "already [to] have been matters of public record." (Ibid.)

Courts balancing these interests in cases similar to this have recognized that, when a person is involuntarily involved in a newsworthy incident, not all aspects of the person's life, and not everything the person says or does, is thereby rendered newsworthy. "Most persons are connected with some activity, vocational or avocational, as to which the public can be said as a matter of law to have a legitimate interest or curiosity. To hold as a matter of law that private facts as to such persons are also within the area of legitimate public interest could indirectly expose everyone's private life to public view." (Virgil v. Time, Inc., supra, 527 F.2d at p. 1131; accord, Gilbert v. Medical Economics Co., supra, 665 F.2d at p. 308 (Gilbert).) This principle is illustrated in the decisions holding that, while a particular event was newsworthy, identification of the plaintiff as the person involved, or use of the plaintiff's identifiable image, added nothing of significance to the story and was therefore an unnecessary invasion of privacy. (See Briscoe, supra, 4 Cal.3d at p. 541 [identification of plaintiff as former criminal]; Gill v. Curtis, supra, 38 Cal.2d at 279 [use of plaintiffs' photograph to illustrate article on love]; Melvin v. Reid, supra, 112 Cal.App. at pp. 291-292 [identification of plaintiff as former prostitute]; Barber v. Time, Inc., supra, 348 Mo. at pp. 1207-1208 [use of plaintiff's name and photograph in article about her unusual medical condition]; Vassiliades v. Garfinkel's Brooks Bros., supra, 492 A.2d at pp. 589-590 [use of plaintiff' s photograph to illustrate presentations on cosmetic surgery].) For the same reason, a college student's candidacy for president of the student body did not render newsworthy a newspaper's revelation that the student was a transsexual, where the court could find "little if any connection between the information disclosed and [the student's] fitness for office." (Diaz, supra, 139 Cal.App.3d at p. 134.) Similarly, a mother's private words over the body of her slain son as it lay in a hospital room were held nonnewsworthy despite undisputed legitimate public interest in the subjects of gang violence and murder. (Green v. Chicago Tribune Co. (Ill.App.Ct. 1996) 675 N.E.2d 249, 255-256.)

Consistent with the above, courts have generally protected the privacy of otherwise private individuals involved in events of great public interest "by requiring that a logical nexus exist between the complaining individual and the matter of legitimate public interest." (Campbell v. Seabury Press (5th Cir. 1980) 614 F.2d 395, 397.) The contents of the publication or broadcast are protected only if they have "some substantial relevance to a matter of legitimate public interest." (Gilbert, supra, 665 F.2d at p. 308.) Thus, recent decisions have generally tested newsworthiness with regard to such individuals by assessing the logical relationship or nexus, or the lack thereof, between the events or activities that brought the person into the public eye and the particular facts disclosed. These decisions have used a number of similar or equivalent phrases to describe the necessary relationship. (See Cinel v. Connick (5th Cir. 1994) 15 F.3d 1338, 1346 ["substantially related"]; Ross v. Midwest Communications, Inc., supra, 870 F.2d at p. 274 [5th Cir.: "logical nexus" ]; Campbell v. Seabury Press, supra, 614 F.2d at p. 397 [5th Cir.: "logical nexus" ]; Gilbert, supra, 665 F.2d at p. 308 [10th Cir.: "substantial relevance" ]; Lee v. Calhoun (10th Cir. 1991) 948 F.2d 1162, 1165-1166 [following Gilbert]; Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at p. 1233 [facts "germane" to story]; Vassiliades v. Garfinkel's Brooks Bros., supra, 492 A.2d at p. 590 ["logical nexus"].) This approach accords with our own prior decisions, in that it balances the public' s right to know against the plaintiff's privacy interest by drawing a protective line at the point the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report. (Cf. Kapellas, supra, 1 Cal.3d at p. 37 [in context of political candidacy, truthful information is generally protected if it "may be relevant" to qualifications for office].) This approach also echoes the Restatement commentators' widely quoted and cited view that legitimate public interest does not include "a morbid and sensational prying into private lives for its own sake . . . ." (Rest.2d Torts, § 652D, com. h, p. 391, italics added; see, e.g., Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1048-1049; Virgil v. Time, Inc., supra, 527 F.2d at p. 1129; Gilbert, supra, 665 F.2d at pp. 307-308; see also Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at p. 1232 [private facts not newsworthy "when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger"].)