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The Texas Supreme Court opened its recent libel-by-implication opinion with the following Nathaniel Hawthorne quote: “Words—So innocent and powerless as they are, as standing in a dictionary, how potent for good or evil they become in the hands of one who knows how to combine them.” See The Dallas Morning News, Inc. and Steve Blow v. John Tatum and Mary Ann Tatum. http://www.txcourts.gov/media/1441577/160098.pdf. This quote, of course, has no legal force, as Nathaniel Hawthorne is not a legal source, nor, for that matter, are his works. But the use of Hawthorne in this case caught my attention due to the facts of the case at hand.

John and Mary Tatum experienced the untimely death of their son. Doubtless, the reader can appreciate the extreme grief that overcomes any parent who outlives his or her child. The Tatums purchased a space in the Dallas Morning News to publish an obituary for their son. As the Court notes, the obituary stated that their son died “as a result of injuries sustained in an automobile accident." Their son had shot himself after he had been involved in a car accident. John and Mary Tatum believed, having read some medical literature on the issue, that their son incurred traumatic brain injury due to the accident, which caused “irrational and suicidal ideations” in their son, ultimately causing him to commit suicide.

One month after the Dallas Morning News published the obituary, Steve Blow published a column in the Dallas Morning News, for whom he worked as a columnist, and revealed that the Tatums’ son had committed suicide. The relevant portions read as follows:

More recently, a paid obituary in this newspaper reported that a popular local high school student died “as a result of injuries sustained in an automobile accident.”

When one of my colleagues began to inquire, thinking the death deserved news coverage, it turned out to have been a suicide.

There was a car crash, all right, but death came from a self-inflicted gunshot wound in a time of remorse afterward.

And for us, there the matter ended. Newspapers don’t write about suicides unless they involve a public figure or happen in a very public way.

But is that always best?

I’m troubled that we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception.

See Appendix to Dallas Morning News, et al. v. Tatum.

The Tatums sued the Dallas Morning News and Steve Blow, alleging libel and libel per se against them. The Tatums alleged that Steve Blow’s column defamed them “by implicitly communicating the following ‘gist’”:

[The Tatums] created a red herring in the obituary by discussing a car crash in order to conceal the fact that Paul’s untreated mental illness—ignored by Plaintiffs—resulted in a suicide that Plaintiffs cannot come to terms with. Defendants led their readers to believe it is people like Plaintiffs—and their alleged inability to accept that their loved ones suffer from mental illness—who perpetuate and exacerbate the problems of mental illness, depression, and suicide.

After the trial court granted the Dallas Morning News and Steve Blow summary judgment, and after the Dallas Court of Appeals reversed the trial court’s ruling as to libel and libel per se, the Texas Supreme Court took the case to determine whether the words used in Steve Blow’s colum were “reasonably capable of defamatory meaning.”

The Texas Supreme Court reversed the Dallas Court of Appeals’ judgment and reinstated the trial court’s summary judgment in favor of the Dallas Morning News and Steve Blow. Ultimately, the Supreme Court found that the column was reasonably capable of conveying that the Tatums published a deceptive obituary, but that, to the extent this defamatory meaning was conveyed to readers, the column expressed that meaning as Steve Blow’s opinion, not as an objective fact. The Court further held that the column was not reasonably capable of conveying the meaning that the Tatums’ son had a mental illness or that their actions exacerbated mental illness, depression, and suicide. These findings were all the Court needed to reinstate the trial court’s summary judgment.

But the majority failed to heed Justice John Roberts’ oft-quoted words of caution: “[I]f it is not necessary to decide more, it is necessary not to decide more.” VanDevander v. Woods, 222 S.W.3d 430, 433 (Tex. 2007) (quoting PDK Labs., Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring)). As the concurrence in the Tatum case prudently pointed out, “[b]ecause the column only expressed a potentially defamatory opinion, the Tatums cannot recover for defamation, and we need not also consider whether Blow’s opinion was correct or substantially true.” http://www.txcourts.gov/media/1441578/160098c.pdf. Instead, the majority opinion went on for nearly three pages and pointed out the many ways in which the Tatums were, in fact, deceptive, the opinion of which is now public record, to be permanently included in the annals of case law.

The Court’s finding that the Tatums were in fact deceptive is very unfortunate, as is the public revelation of facts the Tatums sought to keep private. One of Nathaniel Hawthorne’s short stories provides an anecdote to help demonstrate why the Court’s opinion is unfortunate as to the "truth" of "deception" in the case, and to help demonstrate why the revelation of facts the Tatums sought to keep private is troublesome. 

Endicott and the Red Cross

While an undergraduate student at UCLA, I had the privilege of learning Colonial Literature, and later American Literature, from Michael J. Colacurcio, a leading scholar on the works of Nathaniel Hawthorne. Professor Colacurcio’s seminal work—The Province of Piety: Moral History in Hawthorne’s Early Tales—molded my understanding of Hawthorne’s early short stories. 

Nathaniel Hawthorne fictionalized the seventeenth-century historical account of John Endicott defacing the English banner, cutting out St. George’s Cross. Hawthorne, of course, was writing in the nineteenth-century. To fully understand Endicott and the Red Cross, the reader would also have to know that Hawthorne—in the unrevised portion of the headnote to The Gentle Boy—referred to John Endicott as a man of “uncompromising bigotry . . . made hot and mischievous by violent and hasty passions” who’s “whole conduct . . . was marked by brutal cruelty,” while also referring to Endicott as the “Puritan of Puritans” in The May-Pole of Merry Mount. Endicott and the Red Cross, as with all of Hawthorne’s Puritan short stories, offered a moral-historical critique of the religious-political effects of Puritanism in America. See Michael J. Colacurcio, The Province of Piety: Moral History in Hawthorne’s Early Tales (Duke University Press, 1995).

The narrator of Endicott and the Red Cross opens, by way of background, with a sketch of the religious persecution from which the puritans fled to “Plymouth and Massachusetts,” the persecution of which they are constantly reminded by “the folds of the English banner, with the Red Cross in its field, . . . flung out over a company of Puritans.” See Nathaniel Hawthorne, Endicott and the Red Cross in Selected Tales and Sketches, 217 (Penguin Classics). Endicott was the leader of this company. The narrator juxtaposes the tyranny of the crown and of the “haughty primate, Laud, Archbishop of Canterbury” with the Puritan leadership, who oversee “the whipping post,—with the soil around it well trodden by the feet of evil-doers.” (218). The narrator describes, "by a singular good fortune for our sketch, the head of an Episcopalian and suspected Catholic . . . grotesquely encased” in a pillory. (218). Nearby stood a man “bearing on his breast this label,—A Wanton Gospeller,—which betokened that he had dared to give interpretation of the Holy Writ," and next to him stood a woman wearing a “cleft stick on her tongue,” for wagging it at the elders of the church. (218).

Among the crowd of people in the colony, the author describes those whose punishments are permanently displayed for all to see—“some whose ears had been cropt, like those of puppy-dogs; others, whose cheeks had been branded with the initials of their misdemeanors; one with his nostrils slit and seared; and another, with a halter about his neck. . . . There was likewise a young woman, with no mean share of beauty, whose doom it was to wear the letter A on the breast of her gown, in the eyes of all the world and her own children. And even her own children knew what that initial signified.” (219).

The narrator then addresses his readers, who live after the “times of the Puritans”:

Let not the reader argue, from any of these evidences of iniquity, that the times of the Puritans were more vicious than our own, when, as we pass along the very street of this sketch, we discern no badge of infamy on man or woman. It was the policy of our ancestors to search out even the most secret sins, and expose them to shame, without fear or favor, in the broadest light of the noonday sun. Were such the custom now, perchance we might find materials for a no less piquant sketch than the above.  

(219).

Endicott receives Roger Williams, who bears a letter from John Winthrop, then governor of the Massachusetts Bay colony. The letter informs Endicott that “Charles of England, and Laud, our bitterest persecutor, arch-priest of Canterbury . . .  [intend] to send over a governor-general, . . . to establish the idolatrous forms of English Episcopacy.” (223). Endicott entreats his puritan brethren, “have we not sought this country of a rugged soil and wintry sky? Was it not for the enjoyment of our civil rights? Was it not for liberty to worship God according to our conscience?” (222). Endicott then brandishes his sword and cuts the Red Cross from the English banner. Some cried out “treason,” and others decryied Endicott’s act as “Sacrilegious.” (224). Nevertheless, the narrator ends on an ironic note:

With a cry of triumph, the people gave their sanction to one of the boldest exploits which our history records. And, for ever honored be the name of Endicott! We look back through the mist of ages, and recognize, in the rending of the Red Cross from New England’s banner, the first omen of that deliverance which our fathers consummated, after the bones of the stern Puritan had lain more than a century in the dust. 

(224).

Doubtless, Hawthorne did not intend for the reader to interpret Endicott as a champion of liberty, but displayed competing forms of tyranny, which masquerade as “liberty.” For purposes of this Article, though, the focus will be on the narrator’s appeal to his readers not to argue that the “the times of the Puritans were more vicious than our own.” Hawthorne here challenges his readers to consider the open and outright inhumane practices of past generations, to which the people of the time of the Puritans considered mere discipline and righteousness, to the readers’ own time—What forms of discipline, i.e., those practices which aim to conform people’s behaviors to existing societal norms, presently exist? And, in what ways do these forms of discipline involve “search[ing] out even the most secret sins, and expos[ing] them to shame, in the broadest light of the noonday sun”?

Private Facts and the Dignity and Autonomy of Individuals

The Tatum Court’s analysis concerning the “truth” of the Tatums’ “deception” is deeply troubling, considering the personal nature of the event to the Tatums. Scarred already by the untimely loss of their son’s life, riddled, as they must be, with both grief and disbelief, the publication of their son’s tragedy, which they sought to keep private by not fully disclosing the details of his death in his obituary, is an affront to the Tatums dignity and individual autonomy. It was wholly unnecessary for the Court to engage the question whether the Tatums were “deceptive” in how they framed the life and death of their child. The Court’s finding that the column offered only an opinion resolved the matter.

But another aspect of the facts is also troubling. Steve Blow’s column states that “Newspapers don’t write about suicides unless they involve a public figure or happen in a very public way.” Underlying this statement is some policy acknowledgment, either that suicides that happen in private are not publically important or that suicides that do not involve public figures or do not occur in a very public way should be kept private out of respect for surviving family and friends, that is, newspapers leave it to the survivors to make the issue public.

Steve Blow challenges the notion that suicides should remain private in his blog. He states, “the secrecy surrounding suicide leaves us greatly underestimating the danger there.” Though his goal is to encourage publicity, he chose to make public what the Tatums sought to keep private. He may not have defamed the Tatums, and he may not have intended to “put guilt on the family of suicide victims,” but he undoubtedly hurt the Tatums by making public what they sought to keep private. And, now, their son’s death is paraded in public and in case law, with a Court calling the Tatums “deceptive,” “exposing them to shame, without fear or favor, in the broadest light of the noonday sun.”

Common law acknowledges an action related to defamation for “publicity given to private life.” The Restatement (Second) of Torts recites the elements of this action as follows:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for the invasion of his privacy, if the matter is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.”

Restatement (Second) of Torts §652(D) (1977). This tort places the dignity and autonomy of individuals over the social benefits that truthful material might confer, and appeals to the community’s notion of decency. See Melvin v. Reid, 297 P. 91 (Cal.Ct.App. 1931); cf Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir.), cert. denied 311 U.S. 711 (1940).

The reader will notice that the “publicity given to private life” tort closely tracks the concerns addressed in Hawthorne’s Endicott and the Red Cross. The tort was not derived from Hawthorne’s story, of course, but the life of the law embodies our moral and political history, a history which values privacy as a component of liberty—one that also shies from brandishing people with “badges of sin” for the public permanently to view.

The Tatums did not bring such an action against the Dallas Morning News or Steve Blow. Texas, in fact, has not adopted the "publicity given to private life tort" as articulated by the Restatement Second. See Kevin B. Bennett, Revenge Pornography: Exploring Tortious Remedies in Texas, 46 St. Mary’s L.J. 521, 528-29 (2015). The Texas Supreme Court, though, has defined the right to privacy as “the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity.” See Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973).

In light of the Tatums case, among other cases, perhaps it is time to give life to the tort of “publicity given to private life,” to protect the dignity and autonomy of individuals. The tort has the benefit of balancing the community’s notions of decency against the social benefits of making a person’s private life public. Are “the times of the Puritans” more vicious than our own?