POSNER, Chief Judge.

            Luther Haynes and his wife, Dorothy Haynes née Johnson, appeal from the dismissal on the defendants' motion for summary judgment of their suit against Nicholas Lemann, the author of a highly praised, best-selling book of social and political history called The Promised Land: The Great Black Migration and How It Changed America (1991), and Alfred A. Knopf, Inc., the book's publisher. The plaintiffs claim that the book libels Luther Haynes and invades both plaintiffs' right of privacy. Federal jurisdiction is based on diversity, and the common law of Illinois is agreed to govern the substantive issues. The appeal presents difficult issues at the intersection of tort law and freedom of the press.

            Between 1940 and 1970, five million blacks moved from impoverished rural areas in the South to the cities of the North in search of a better life. Some found it, and after sojourns of shorter or greater length in the poor black districts of the cities moved to middle-class areas. Others, despite the ballyhooed efforts of the federal government, particularly between 1964 and 1972, to erase poverty and racial discrimination, remained mired in what has come to be called the "urban ghetto." The Promised Land is a history of the migration. It is not history as a professional historian, a demographer, or a social scientist would write it. Lemann is none of these. He is a journalist and has written a journalistic history, in which the focus is on individuals whether powerful or representative. In the former group are the politicians who invented, executed, or exploited the "Great Society" programs. In the latter are a handful of the actual migrants. Foremost among these is Ruby Lee Daniels. Her story is the spine of the book. We are introduced to her on page 7; we take leave of her on page 346, within a few pages of the end of the text of the book.

            When we meet her, it is the early 1940s and she is a young woman picking cotton on a plantation in Clarksdale, Mississippi. "[B]lack sharecropper society on the eve of the introduction [in the 1940s] of the mechanical cotton picker [a major spur to the migration] was the equivalent of big-city ghetto society today in many ways. It was the national center of illegitimate childbearing and of the female-headed family." Ruby had married young, but after her husband had been inducted into the army on the eve of World War II she had fallen in love with a married man, by whom she had had a child. The man's wife died and Ruby married him, but they broke up after a month. Glowing reports from an aunt who had moved to Chicago persuaded Ruby Daniels to move there in 1946. She found a job doing janitorial work, but eventually lost the job and went on public aid. She was unmarried, and had several children, when in 1953 she met "the most important man in her life." Luther Haynes, born in 1924 or 1925, a sharecropper from Mississippi, had moved to Chicago in an effort to effect a reconciliation with his wife. The effort had failed. When he met Ruby Daniels he had a well-paying job in an awning factory. They lived together, and had children. But then "Luther began to drink too much. When he drank he got mean, and he and Ruby would get into ferocious quarrels. He was still working, but he wasn't always bringing his paycheck home." Ruby got work as a maid. They moved to a poorer part of the city. The relationship went downhill. "It got to the point where [Luther] would go out on Friday evenings after picking up his paycheck, and Ruby would hope he wouldn't come home, because she knew he would be drunk. On the Friday evenings when he did come home — over the years Ruby developed a devastating 1225*1225 imitation of Luther, and could recreate the scene quite vividly — he would walk into the apartment, put on a record and turn up the volume, and saunter into their bedroom, a bottle in one hand and a cigarette in the other, in the mood for love. On one such night, Ruby's last child, Kevin, was conceived. Kevin always had something wrong with him — he was very moody, he was scrawny, and he had a severe speech impediment. Ruby was never able to find out exactly what the problem was, but she blamed it on Luther; all that alcohol must have gotten into his sperm, she said."

            Ruby was on public aid, but was cut off when social workers discovered she had a man in the house. She got a night job. Luther was supposed to stay with the children while she was at work, especially since they lived in a dangerous neighborhood; but often when she came home, at 3:00 a.m. or so, she would "find the older children awake, and when she would ask them if Luther had been there, the answer would be, `No, ma'am.'" Ruby's last aid check, arriving providentially after she had been cut off, enabled the couple to buy a modest house on contract — it "was, by a wide margin, the best place she had ever lived." But "after only a few months, Luther ruined everything by going out and buying a brand-new 1961 Pontiac. It meant more to him than the house did, and when they couldn't make the house payment, he insisted on keeping the car" even though she hadn't enough money to buy shoes for the children. The family was kicked out of the house. They now moved frequently. They were reaching rock bottom. At this nadir, hope appeared in the ironic form of the Robert Taylor Homes, then a brand-new public housing project, now a notorious focus of drug addiction and gang violence. Ruby had had an application for public housing on file for many years, but the housing authority screened out unwed mothers. Told by a social worker that she could have an apartment in the Taylor Homes if she produced a marriage license, she and Luther (who was now divorced from his first wife) were married forthwith and promptly accepted as tenants. "The Haynes family chose to rejoice in their good fortune in becoming residents of the Robert Taylor Homes. As Ruby's son Larry, who was twelve years old at the time, says, `I thought that was the beautifullest place in the world.'"

            Even in the halcyon days of 1962, the Robert Taylor Homes were no paradise. There was considerable crime, and there were gangs, and Ruby's son Kermit joined one. Kermit was not Luther's son and did not recognize his authority. The two quarreled a lot. Meanwhile Luther had lost his job in the awning factory "that he had had for a decade, and then bounced around a little. He lost jobs because of transportation problems, because of layoffs, because of a bout of serious illness, because of his drinking, because he had a minor criminal record (having been in jail for disorderly conduct following a fight with Ruby), and because creditors were after him." He resumed "his old habit of not returning from work on Fridays after he got his paycheck." One weekend he didn't come home at all. In a search of his things Ruby discovered evidence that Luther was having an affair with Dorothy Johnson, a former neighbor. "Luther was not being particularly careful; he saw in Dorothy, who was younger than Ruby, who had three children compared to Ruby's eight, who had a job while Ruby was on public aid, the promise of an escape from the ghetto, and he was entranced." The children discovered the affair. Kermit tried to strangle Luther. In 1965 Luther moved out permanently, and eventually he and Ruby divorced.

            Ruby remained in the Robert Taylor Homes until 1979, when she moved back to Clarksdale. She had become eligible for social security in 1978; and with her surviving children (one of her sons had died, either a suicide or murdered) now adults, though most of them deeply troubled adults and Kevin, whom Ruby in a custody proceeding described as retarded, still living at home, Ruby "is settling into old age with a sense of contentment about the circumstances she has found." But "there has always been that nagging sensation of incompleteness, which made itself felt most directly in her relationships with men."

            1226*1226 After divorcing Ruby, Luther Haynes married Dorothy Johnson. He is still married to her, "owns a home on the far South Side of Chicago, and has worked for years as a parking-lot attendant; only recently have he and Ruby found that they can speak civilly to each other on the phone."

            There is much more to the book than our paraphrase and excerpts—much about other migrants, about the travails of Ruby's children, about discrimination against blacks in both the North and the South, and about the politics of poverty programs in Washington and Chicago. But the excerpts we have quoted contain all the passages upon which the Hayneses' lawsuit is founded.

            The charge of libel is confined to three statements in the book: that Haynes left his children alone at night when he was supposed to be watching them; that he lost a job or jobs because of drinking; and that he spent money on a car that he should have used to buy shoes for his children. We do not agree with the defendants that the dismissal of the libel claim must be upheld because Haynes has failed to allege pecuniary loss from the alleged libels ("special damages"). The rule in Illinois, which used to be limited to slander cases but has been extended to all defamation cases, Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 267 (7th Cir.1983), is that a plaintiff can maintain a suit for defamation without proof of special damages only if the defamatory statement falls into one of four "per se" categories: commission of a crime; infection with a type of communicable disease that could cause the infected person to be shunned; malfeasance or misfeasance in the performance of an office or a job; and (what is closely related, but less redolent of actual misconduct and usable by business firms as well as by workers or professionals) unfitness for one's profession or trade. Id. at 267-68; Mittelman v. Witous, 135 Ill.2d 220, 142 Ill. Dec. 232, 241, 552 N.E.2d 973, 982 (1989). The statements that Haynes claims are libelous can be interpreted, though just barely, as implying that he was guilty of criminal neglect of his children and was unable to discharge the duties of at least one of his jobs because of alcohol. Ever since modification of the "innocent construction" doctrine in Chapski v. Copley Press, 92 Ill.2d 344, 65 Ill.Dec. 884, 442 N.E.2d 195 (1982), which left the doctrine meaning merely that a court should not strain to put a defamatory interpretation on an ambiguous statement, see id. 65 Ill.Dec. at 888, 442 N.E.2d at 199, Illinois courts (and federal courts when interpreting Illinois law) have been quick to find implications of criminal conduct or of employee or business misconduct in statements that might have seemed susceptible of an interpretation that would have taken them out of the per se categories. See Babb v. Minder, 806 F.2d 749, 758 (7th Cir.1986) (statement that employee had "mooned" held actionable as an accusation of the crime of indecent exposure); Costello v. Capital Cities Communications, Inc., 125 Ill.2d 402, 126 Ill.Dec. 919, 925, 532 N.E.2d 790, 796 (1988) (statement that employee had lied held actionable as implying lack of integrity in performance of duties); Fleming v. Kane County, 636 F.Supp. 742, 746-47 (N.D.Ill.1986) (same); Crinkley v. Dow Jones & Co., 119 Ill.App.3d 147, 74 Ill.Dec. 636, 639, 456 N.E.2d 138, 141 (1983) (statement alleging payoffs to agents of foreign governments held actionable); Brown & Williamson Tobacco Corp. v. Jacobson, supra, 713 F.2d at 268-69 (allegations that cigarette company attempted through its advertising to entice children to smoke held actionable).

            The requirement of proving special damages does prevent Haynes from basing a libel claim on two other statements in the book that he contends are false: that his drinking was responsible for Kevin's defects and that his motives for leaving Ruby for Dorothy were financial. (The second is an implication rather than an outright statement, but we shall give Haynes the benefit of the doubt and assume with him that the book implies that his motives were financial rather than—an interpretation that the passage also supports, and that the innocent-construction rule, even in its tempered form after Chapski, might therefore require be placed on it — a more diffuse hope of betterment.) These statements are not within any of the per se categories and therefore are not actionable, because Haynes alleges no pecuniary injury. 1227*1227 They probably would be nonactionable in any event as obvious statements of opinion (Ruby's and Lemann's respectively) rather than of fact. A statement of fact is not shielded from an action for defamation by being prefaced with the words "in my opinion," but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable. Milkovich v. Lorain Journal Co., 497 U.S. 1, 17-21, 110 S.Ct. 2695, 2704-07, 111 L.Ed.2d 1 (1990); Mittelman v. Witous, supra, 142 Ill.Dec. at 241-43, 552 N.E.2d at 982-84; Beasley v. St. Mary's Hospital, 200 Ill.App.3d 1024, 146 Ill.Dec. 714, 720, 558 N.E.2d 677, 683 (1990); Gross v. New York Times Co., 82 N.Y.2d 146, 603 N.Y.S.2d 813, 623 N.E.2d 1163 (1993). The facts about Kevin's condition and about the respective financial circumstances of Ruby and Dorothy were uncontested, and Ruby and Lemann were entitled to their interpretation of them. Luther drank heavily; the proposition that a man's heavy drinking can, and that Luther's heavy drinking did, damage a fetus is represented in the book merely as Ruby's conjecture. A reasonable reader would not suppose that she had proof, or even the scientific knowledge that might ground a reasonable inference. As for Luther's motives for leaving Ruby for Dorothy, they can never be known for sure (even by Luther) and anyone is entitled to speculate on a person's motives from the known facts of his behavior. Luther Haynes left a poor woman for a less poor one, and Lemann drew a natural though not inevitable inference. He did not pretend to have the inside dope. He and Ruby claim insight, not information that the plaintiff might be able to prove false in a trial.

            Lemann's source for the only statements upon which Luther Haynes can base his claim for defamation, as for most of the rest of what he wrote about Haynes, was Ruby Daniels. He had interviewed Haynes as well, but Haynes in his deposition denied that Lemann had questioned him about his relationship with Ruby. Haynes swears that he never left his children alone in a dangerous neighborhood when he was supposed to be with them, did not by his expenditures on the Pontiac deprive his children of shoes, and was fired not for drinking but because he had been given a bottle of liquor by a friend which was found unopened in his pocket by his supervisor; since his job was that of an armed security guard, the supervisor was unwilling to take a chance on the truthfulness of his story. Haynes's version of how he lost a job because of "drinking" is corroborated by Lemann's notes of his interview with Haynes, but is not mentioned in the book.

            It would take a trial to decide whether Ruby Daniels (and hence Nicholas Lemann) or Luther Haynes should be believed on these three matters. But the district judge was nevertheless correct to dismiss the defamation claim because if the gist of a defamatory statement is true, if in other words the statement is substantially true, error in detail is not actionable. Berkos v. National Broadcasting Co., 161 Ill.App.3d 476, 113 Ill.Dec. 683, 693-94, 515 N.E.2d 668, 678-79 (1987); American International Hospital v. Chicago Tribune Co., 136 Ill.App.3d 1019, 91 Ill.Dec. 479, 782, 483 N.E.2d 965, 968 (1985); Tunney v. American Broadcasting Co., 109 Ill.App.3d 769, 65 Ill.Dec. 294, 297-98, 441 N.E.2d 86, 89-90 (1982); Vachet v. Central Newspapers, Inc., 816 F.2d 313 (7th Cir. 1987); Herron v. King Broadcasting Co., 112 Wash.2d 762, 776 P.2d 98, 102-05 (1989); Hovey v. Iowa State Daily Publication Board, Inc., 372 N.W.2d 253, 256 (Ia.1985); Tschirgi v. Lander Wyoming State Journal, 706 P.2d 1116, 1120 (Wyo.1985); Korkala v. W.W. Norton & Co., 618 F.Supp. 152, 155 (S.D.N.Y.1985).

            To evaluate the application of this rule to Haynes's libel claims requires us to consider facts brought out in discovery and not contested, although they are not in the book. Haynes in his deposition admitted to drinking heavily during the period when he lost his job because of the unopened liquor bottle in his pocket. He admitted to being arrested and jailed for assaulting a police officer after drinking. When he walked out on Ruby he also walked out on his four children by her, and he refused to support 1228*1228 them. She was forced to obtain court orders for child support. Haynes repeatedly flouted the orders and eventually was jailed for contempt. During their divorce proceedings it came out that, after leaving Ruby, he and Dorothy Johnson had had a marriage ceremony and he had entered their names in the marriage registry of the county clerk's office —two years before his divorce from Ruby.

            Beside these uncontested facts — not to mention the facts about Haynes in the book that he does not contend are false — the alleged falsehoods pale. They do not exhibit him in a worse light than a bare recitation of the uncontested facts about his behavior in relation to Ruby and her children would do. For Lemann left out much that was true. He did not mention the bigamous marriage, the repeated flouting of child-support orders, the arrest for assaulting a police officer, or the jailing for contempt. Substitute the true for the false (if Haynes is believed), and the damage to Haynes's reputation would be no less.

            The rule of substantial truth is based on a recognition that falsehoods which do no incremental damage to the plaintiff's reputation do not injure the only interest that the law of defamation protects. A news report that contains a false statement is actionable "only when `significantly greater opprobrium' results from the report containing the falsehood than would result from the report without the falsehood." Herron v. King Broadcasting Co., supra, 776 P.2d at 102. Even when the plaintiff in a defamation suit is not a public figure, the Supreme Court insists in the name of the First Amendment that unless the author is deliberately lying or is recklessly indifferent to the truth or falsity of what he says (neither is a plausible hypothesis here), the plaintiff must prove actual though not necessarily pecuniary harm in order to recover damages. Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50, 94 S.Ct. 2997, 3011-12, 41 L.Ed.2d 789 (1974). Falsehoods that do not harm the plaintiff's reputation more than a full recital of the true facts about him would do are thus not actionable. The rule making substantial truth a complete defense and the constitutional limitations on defamation suits coincide.

            Ordinarily the question whether a defamatory work is substantially true although erroneous in some details is for the jury. Kohn v. West Hawaii Today, Inc., 65 Haw. 584, 656 P.2d 79, 84 (1982). But no reasonable jury, even if it believed Luther Haynes over Ruby Daniels on every issue on which they differ, could find that The Promised Land was not substantially true in its depiction of Luther at the time he lived with Ruby. He was a heavy drinker, a bad husband, a bad father, an erratic employee. These are things either that he concedes or that are incontestably established by the judicial records in his matrimonial litigation. Whether he left the children alone at night on some occasions when Ruby was working, or was fired for drinking rather than for having liquor on his person while working, or preferred to spend money on his car than on his children's shoes, are details that, while not trivial, would not if corrected have altered the picture that the true facts paint. And it makes no difference that the true facts were unknown until the trial. A person does not have a legally protected right to a reputation based on the concealment of the truth. This is implicit in the rule that truth — not just known truth (see Restatement (Second) of Torts § 581A, comment h (1977); Prosser and Keeton on the Law of Torts § 116, at pp. 840-41 (5th ed. 1984)) — is a complete defense to defamation. And the burden of proving falsity rests on the plaintiff. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 1563-64, 89 L.Ed.2d 783 (1986).

            We must be careful, however, that we are not construing the gist of the allegedly defamatory statements so broadly as to invite defendants to commit, in effect, a further but privileged libel, by bringing to light every discreditable act that the plaintiff may have committed, in an effort to show that he is as "bad" as the defamatory statements depict him. This would strip people who had done bad things of any legal protection against being defamed; they would be defamation outlaws. The true damaging facts must be closely related to the false ones. But that 1229*1229 test is satisfied. Luther abandoned his children and was eventually jailed for doing so. These truths encompass and transcend what, whether or not it might be elevated to criminal neglect, is, after all, common enough — leaving children, some of them teenagers, unattended late at night. (And how different is that from leaving a child at night with a teenage babysitter?) An armed security guard who is discovered by his employer to have a bottle of liquor in his pocket is equivalent in irresponsible employee conduct to an ordinary worker found drinking on the job. And a decision to spend money on a car rather than on one's children's clothes is subsumed by total financial abandonment of one's children in violation of court orders, an abandonment compounded by a bigamous marriage to a woman who herself had children. The allegedly false facts about Luther were variants of the true that did not paint him in a worse light. Corresponding to the "immaterial error[s]" of which the substantial-truth cases speak, Sivulich v. Howard Publications, Inc., 126 Ill.App.3d 129, 81 Ill. Dec. 416, 418, 466 N.E.2d 1218, 1220 (1984), the alleged falsehoods were merely illustrations of undoubted truths about Luther Haynes's character at the time, illustrations that even if false in detail conveyed an accurate impression. They were therefore substantially true within the meaning which this term must bear to make sense of the cases.

            The major claim in the complaint, and the focus of the appeal, is not defamation, however; it is invasion of the right of privacy. In tort law the term "right of privacy" covers several distinct wrongs. Using a celebrity's (or other person's) name or picture in advertising without his consent. Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir.1983); Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 250 Ga. 135, 296 S.E.2d 697 (1982); Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2d Cir.1953); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1138-39 (7th Cir. 1985). Tapping someone's phone, or otherwise invading a person's private space. De May v. Roberts, 46 Mich. 160, 9 N.W. 146, 149 (1881); Rhodes v. Graham, 238 Ky. 225, 37 S.W.2d 46 (1931); Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958); Nader v. General Motors Corp., 25 N.Y.2d 560, 307 N.Y.S.2d 647, 544-55, 255 N.E.2d 765, 770-71 (1970); Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir.1971). Harassing a celebrity by following her too closely, albeit on a public street. Cf. Galella v. Onassis, 487 F.2d 986, 995 and n. 12 (2d Cir.1973). Casting a person in a false light by publicizing details of the person's life that while true are so selected or highlighted as to convey a misleading impression of the person's character. Time, Inc. v. Hill, 385 U.S. 374, 391-94, 87 S.Ct. 534, 543-45, 17 L.Ed.2d 456 (1967). Publicizing personal facts that while true and not misleading are so intimate that their disclosure to the public is deeply embarrassing to the person thus exposed and is perceived as gratuitous by the community. Daily Times Democrat v. Graham, 276 Ala. 380, 162 So.2d 474 (1964); Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942); Diaz v. Oakland Tribune, Inc., 139 Cal.App.3d 118, 188 Cal.Rptr. 762, 767-78 (1983); Banks v. King Features Syndicate, Inc., 30 F.Supp. 352 (S.D.N.Y.1939). The last, the publicizing of personal facts, is the aspect of invasion of privacy charged by the Hayneses.

            Even people who have nothing rationally to be ashamed of can be mortified by the publication of intimate details of their life. Most people in no wise deformed or disfigured would nevertheless be deeply upset if nude photographs of themselves were published in a newspaper or a book. They feel the same way about photographs of their sexual activities, however "normal," or about a narrative of those activities, or about having their medical records publicized. Although it is well known that every human being defecates, no adult human being in our society wants a newspaper to show a picture of him defecating. The desire for privacy illustrated by these examples is a mysterious but deep fact about human personality. It deserves and in our society receives legal protection. The nature of the injury shows, by the way, that the defendants are wrong to argue that this branch of the right of privacy requires proof of special damages. Manville v. Borg-Warner Corp., 418 F.2d 434, 436-37 1230*1230 (10th Cir.1969); Vassiliades v. Garfinckel's, 492 A.2d 580, 594 (D.C.App.1985).

            But this is not the character of the depictions of the Hayneses in The Promised Land. Although the plaintiff's claim that the book depicts their "sex life" and "ridicules" Luther Haynes's lovemaking (the reference is to the passage we quoted in which the author refers to Ruby's "devastating imitation" of Luther's manner when he would come home Friday nights in an amorous mood), these characterizations are misleading. No sexual act is described in the book. No intimate details are revealed. Entering one's bedroom with a bottle in one hand and a cigarette in the other is not foreplay. Ruby's speculation that Kevin's problems may have been due to Luther's having been a heavy drinker is not the narration of a sexual act.

            We said that proof of special damages is not required in a case in which the public revelation of personal facts is claimed to be an invasion of privacy. Even so, a plaintiff is not allowed to evade the rule that requires proof of such damages in defamation cases (outside the per se categories) by attempting to prove that some of the personal facts publicized about him are false, unless he is prepared to prove special damages — and perhaps, as we are about to see, there is no "unless." Haynes denies that his drinking had anything to do with his son Kevin's defects or that he was actuated by mercenary considerations in leaving Ruby for Dorothy. These denials, we have seen, could not be made the basis of a libel case in the absence of proof of special damages, here lacking. No more, we think, can they be used to enhance a privacy case, whether it is a false-light case, Brown & Williamson Tobacco Corp. v. Jacobson, supra, 713 F.2d at 267; Harte v. Chicago Council of Lawyers, 220 Ill.App.3d 255, 163 Ill.Dec. 324, 327, 329, 581 N.E.2d 275, 278, 280 (1991); Schaffer v. Zekman, 196 Ill.App.3d 727, 143 Ill.Dec. 916, 921-22, 554 N.E.2d 988, 993-94 (1990); see generally Restatement (Second) of Torts, supra, § 652E, comment e, or, as here, a case about the publication of private facts. Leidholdt v. L.F.P. Inc., 860 F.2d 890, 895 (9th Cir.1988). Indeed, that type of case presupposes the truth of the facts disclosed. Id. If they are false, the interest invaded is that protected by the defamation and false-light torts: the interest in being represented truthfully to the world.

            Absence of special damages may be the reason why the Hayneses have not appealed the dismissal of their claim that the defendants cast Luther in a false light — though in fairness to him we should point out that they may have placed him in a false light with respect to his motives for leaving Ruby. Lemann's interview notes suggest (as the book does not, at least not clearly) that the major difference which Haynes perceived between the two women was one of character rather than of financial wherewithal. According to the notes, Haynes told Lemann that Ruby "never wanted to work. She wanted to sit around and be on aid. I called Ruby and asked her why she let `Nita [their daughter] have a baby and she said, She's grown. I couldn't handle that talk, so I said forget it. Ruby was on aid when I met her, and she wanted to have more kids so she could have more aid. Dorothy had three kids, and a job."

            This is an aside. The branch of privacy law that the Hayneses invoke in their appeal is not concerned with, and is not a proper surrogate for legal doctrines that are concerned with, the accuracy of the private facts revealed. It is concerned with the propriety of stripping away the veil of privacy with which we cover the embarrassing, the shameful, the tabooed, truths about us. Leidholdt v. L.F.P. Inc., supra, 860 F.2d at 895. The revelations in the book are not about the intimate details of the Hayneses' life. They are about misconduct, in particular Luther's. (There is very little about Dorothy in the book, apart from the fact that she had had an affair with Luther while he was still married to Ruby and that they eventually became and have remained lawfully married.) The revelations are about his heavy drinking, his unstable employment, his adultery, his irresponsible and neglectful behavior toward his wife and children. So we must consider cases in which the right of privacy has been invoked as a shield against the revelation of previous misconduct.

            1231*1231 Two early cases illustrate the range of judicial thinking. In Melvin v. Reid, 112 Cal.App. 285, 297 Pac. 91 (1931), the plaintiff was a former prostitute, who had been prosecuted but acquitted of murder. She later had married and (she alleged) for seven years had lived a blameless respectable life in a community in which her lurid past was unknown — when all was revealed in a movie about the murder case which used her maiden name. The court held that these allegations stated a claim for invasion of privacy. The Hayneses' claim is similar although less dramatic. They have been a respectable married couple for two decades. Luther's alcohol problem is behind him. He has steady employment as a doorman. His wife is a nurse, and in 1990 he told Lemann that the couple's combined income was $60,000 a year. He is not in trouble with the domestic relations court. He is a deacon of his church. He has come a long way from sharecropping in Mississippi and public housing in Chicago and he and his wife want to bury their past just as Mrs. Melvin wanted to do and in Melvin v. Reid was held entitled to do. Cf. Briscoe v. Reader's Digest Ass'n, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34, 43 (1971). In Luther Haynes's own words, from his deposition, "I know I haven't been no angel, but since almost 30 years ago I have turned my life completely around. I stopped the drinking and all this bad habits and stuff like that, which I deny, some of [it] I didn't deny, because I have changed my life. It take me almost 30 years to change it and I am deeply in my church. I look good in the eyes of my church members and my community. Now, what is going to happen now when this public reads this garbage which I didn't tell Mr. Lemann to write? Then all this is going to go down the drain. And I worked like a son of a gun to build myself up in a good reputation and he has torn it down."

            But with Melvin v. Reid compare Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir. 1940), another old case but one more consonant with modern thinking about the proper balance between the right of privacy and the freedom of the press. A child prodigy had flamed out; he was now an eccentric recluse. The New Yorker ran a "where is he now" article about him. The article, entitled "April Fool," did not reveal any misconduct by Sidis but it depicted him in mocking tones as a comical failure, in much the same way that the report of Ruby's "devastating imitation" of the amorous Luther Haynes could be thought to have depicted him as a comical failure, albeit with sinister consequences absent from Sidis's case. The invasion of Sidis's privacy was palpable. But the publisher won. No intimate physical details of Sidis's life had been revealed; and on the other side was the undoubted newsworthiness of a child prodigy, as of a woman prosecuted for murder. Sidis, unlike Mrs. Melvin, was not permitted to bury his past.

            Evolution along the divergent lines marked out by Melvin and Sidis continued, compare Barbieri v. News-Journal Co., 56 Del. 67, 189 A.2d 773 (1963), with Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir.1975) — until Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), which may have consigned the entire Melvin line to the outer darkness. Rawlins v. Hutchinson Publishing Co., 218 Kan. 295, 543 P.2d 988, 993-96 (1975); Romaine v. Kallinger, 109 N.J. 282, 537 A.2d 284, 294-95 (1988); cf. Forsher v. Bugliosi, 26 Cal.3d 792, 163 Cal. Rptr. 628, 639, 608 P.2d 716, 726-27 (1980); Street v. National Broadcasting Co., 645 F.2d 1227, 1235-36 (6th Cir.1981). A Georgia statute forbade the publication of names of rape victims. A television station obtained the name of a woman who had been raped and murdered from the indictment of her assailants (a public document), and broadcast it in defiance of the statute. The woman's father brought a tort suit against the broadcaster, claiming that the broadcast had violated his right of privacy. The broadcaster argued that the name of the woman was a matter of public concern, but the Georgia supreme court held that the statute established the contrary, and affirmed a finding of liability. The U.S. Supreme Court reversed, holding that the statute violated the First Amendment. The Court declined to rule whether the publication of truthful information can ever be made the basis of a tort suit for invasion of privacy, but held that the First Amendment creates a privilege to publish matters contained in public records even 1232*1232 if publication would offend the sensibilities of a reasonable person. Years later the Court extended the rule laid down in Cox to a case in which a newspaper published a rape victim's name (again in violation of a state statute) that it had obtained from a police report that was not a public document. Florida Star v. B.J.F., 491 U.S. 524, 532, 109 S.Ct. 2603, 2608, 105 L.Ed.2d 443 (1989). Again the Court was careful not to hold that states can never provide a tort remedy to a person about whom truthful, but intensely private, information of some interest to the public is published. Id. at 541, 109 S.Ct. at 2613.

            We do not think the Court was being coy in Cox or Florida Star in declining to declare the tort of publicizing intensely personal facts totally defunct. (Indeed, the author of Cox dissented in Florida Star.) The publication of facts in a public record or other official document, such as the police report in the Florida Star, is not to be equated to publishing a photo of a couple making love or of a person undergoing some intimate medical procedure; we even doubt that it would make a difference in such a case if the photograph had been printed in a government document (say the patient's file in a Veterans Administration hospital).

            Yet despite the limited scope of the holdings of Cox and Florida Star, the implications of those decisions for the branch of the right of privacy that limits the publication of private facts are profound, even for a case such as this in which, unlike Melvin v. Reid, the primary source of the allegedly humiliating personal facts is not a public record. (The primary source is Ruby Daniels.) 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. To be identified in the newspaper as a rape victim is intensely embarrassing. And it is not invited embarrassment. No one asks to be raped; the plaintiff in Melvin v. Reid did not ask to be prosecuted for murder (remember, she was acquitted, though whether she actually was innocent is unknown); Sidis did not decide to be a prodigy; and Luther Haynes did not aspire to be a representative figure in the great black migration from the South to the North. People who do not desire the limelight and do not deliberately choose a way of life or course of conduct calculated to thrust them into it nevertheless have no legal right to extinguish it if the experiences that have befallen them are newsworthy, even if they would prefer that those experiences be kept private. The possibility of an involuntary loss of privacy is recognized in the modern formulations of this branch of the privacy tort, which require not only that the private facts publicized be such as would make a reasonable person deeply offended by such publicity but also that they be facts in which the public has no legitimate interest. Leopold v. Levin, 45 Ill.2d 434, 259 N.E.2d 250 (1970); Beresky v. Teschner, 64 Ill.App.3d 848, 21 Ill.Dec. 532, 536-37, 381 N.E.2d 979, 983-84 (1978); Anonsen v. Donahue, 857 S.W.2d 700, 704 (Tex.App.1993); Diaz v. Oakland Tribune, Inc., supra, 188 Cal.Rptr. at 768-70; Gilbert v. Medical Economics Co., 665 F.2d 305, 307-08 (10th Cir.1981); Campbell v. Seabury Press, 614 F.2d 395 (5th Cir.1980) (per curiam); Restatement (Second) of Torts, supra, § 652D(b).

            The two criteria, offensiveness and newsworthiness, are related. An individual, and more pertinently perhaps the community, is most offended by the publication of intimate personal facts when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger. The reader of a book about the black migration to the North would have no legitimate interest in the details of Luther Haynes's sex life; but no such details are disclosed. Such a reader does have a legitimate interest in the aspects of Luther's conduct that the book reveals. For one of Lemann's major themes is the transposition virtually intact of a sharecropper morality characterized by a family structure "matriarchal and elastic" and by an "extremely unstable" marriage bond to the slums of the northern cities, and the interaction, largely random and sometimes perverse, of that morality with governmental programs to alleviate poverty. Public aid policies discouraged Ruby and Luther from living together; public housing policies precipitated a marriage 1233*1233 doomed to fail. No detail in the book claimed to invade the Hayneses' privacy is not germane to the story that the author wanted to tell, a story not only of legitimate but of transcendent public interest.

            The Hayneses question whether the linkage between the author's theme and their private life really is organic. They point out that many social histories do not mention individuals at all, let alone by name. That is true. Much of social science, including social history, proceeds by abstraction, aggregation, and quantification rather than by case studies; the economist Robert Fogel has won a Nobel prize for his statistical studies of economic history, including, not wholly unrelated to the subject of Lemann's book, the history of Negro slavery in the United States. But it would be absurd to suggest that cliometric or other aggregative, impersonal methods of doing social history are the only proper way to go about it and presumptuous to claim even that they are the best way. Lemann's book has been praised to the skies by distinguished scholars, among them black scholars covering a large portion of the ideological spectrum — Henry Louis Gates Jr., William Julius Wilson, and Patricia Williams. Lemann's methodology places the individual case history at center stage. If he cannot tell the story of Ruby Daniels without waivers from every person who she thinks did her wrong, he cannot write this book.

            Well, argue the Hayneses, at least Lemann could have changed their names. But the use of pseudonyms would not have gotten Lemann and Knopf off the legal hook. The details of the Hayneses' lives recounted in the book would identify them unmistakably to anyone who has known the Hayneses well for a long time (members of their families, for example), or who knew them before they got married; and no more is required for liability either in defamation law, Rosenblatt v. Baer, 383 U.S. 75, 79-87, 86 S.Ct. 669, 672-77, 15 L.Ed.2d 597 (1966); Stevens v. Tillman, 855 F.2d 394, 397 (7th Cir.1988); Brown & Williamson Tobacco Corp. v. Jacobson, supra, 713 F.2d at 267, or in privacy law. Daily Times Democrat v. Graham, supra, 162 So.2d at 476; Vassiliades v. Garfinckel's, supra, 492 A.2d at 588. Lemann would have had to change some, perhaps many, of the details. But then he would no longer have been writing history. He would have been writing fiction. The nonquantitative study of living persons would be abolished as a category of scholarship, to be replaced by the sociological novel. That is a genre with a distinguished history punctuated by famous names, such as Dickens, Zola, Stowe, Dreiser, Sinclair, Steinbeck, and Wolfe, but we do not think that the law of privacy makes it (or that the First Amendment would permit the law of privacy to make it) the exclusive format for a social history of living persons that tells their story rather than treating them as data points in a statistical study. Reporting the true facts about real people is necessary to "obviate any impression that the problems raised in the [book] are remote or hypothetical." Gilbert v. Medical Economics Co., supra, 665 F.2d at 308. And surely a composite portrait of ghetto residents would be attacked as racial stereotyping.

            The Promised Land does not afford the reader a titillating glimpse of tabooed activities. The tone is decorous and restrained. Painful though it is for the Hayneses to see a past they would rather forget brought into the public view, the public needs the information conveyed by the book, including the information about Luther and Dorothy Haynes, in order to evaluate the profound social and political questions that the book raises. Given the Cox decision, moreover, all the discreditable facts about the Hayneses that are contained in judicial records are beyond the power of tort law to conceal; and the disclosure of those facts alone would strip away the Hayneses' privacy as effectively as The Promised Land has done. (This case, it could be argued, has stripped them of their privacy, since their story is now part of a judicial record — the record of this case.) We do not think it is an answer that Lemann got his facts from Ruby Daniels rather than from judicial records. The courts got the facts from Ruby. We cannot see what difference it makes that Lemann went to the source.

            Ordinarily the evaluation and comparison of offensiveness and newsworthiness would be, like other questions of the application 1234*1234 of a legal standard to the facts of a particular case, matters for a jury, not for a judge on a motion for summary judgment. But summary judgment is properly granted to a defendant when on the basis of the evidence obtained in pretrial discovery no reasonable jury could render a verdict for the plaintiff, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986), and that is the situation here. No modern cases decided after Cox, and precious few before, go as far as the plaintiffs would have us go in this case. Almost all the recent cases on which they rely, such as Capra v. Thoroughbred Racing Ass'n of North America, Inc., 787 F.2d 463 (9th Cir.1986) (per curiam); Hawkins by Hawkins v. Multimedia, Inc., 288 S.C. 569, 344 S.E.2d 145 (1986), and Times Mirror Co. v. Superior Court, 198 Cal.App.3d 1420, 244 Cal.Rptr. 556, 564 (1988), involve the vindication of paramount social interests, such as the protection of children, patients, and witnesses — interests not involved in this case. The plaintiffs' best post-Cox cases are Vassiliades v. Garfinckel's, supra, and Huskey v. National Broadcasting Co., 632 F.Supp. 1282, 1290-92 (N.D.Ill.1986), the former involving before-and-after photos of a face lift, the latter involving television pictures of a prisoner dressed only in gym shorts. Photographic invasions of privacy usually are more painful than narrative ones, and even partial nudity is a considerable aggravating factor. Vassiliades also involved the special issue of patient rights, though it was not emphasized by the court.

            Illinois has been a follower rather than a leader in recognizing claims of invasion of privacy. Lovgren v. Citizens First National Bank, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987 (1989); Leopold v. Levin, supra, 259 N.E.2d at 254; Miller v. Motorola, Inc., 202 Ill.App.3d 976, 148 Ill.Dec. 303, 560 N.E.2d 900 (1990); Eick v. Perk Dog Food Co., 347 Ill.App. 293, 106 N.E.2d 742, 743 (1952); Douglass v. Hustler Magazine, Inc., supra, 769 F.2d at 1133, 1138; Brazinski v. Amoco Petroleum Additives Co., 6 F.2d 1176, 1183 (7th Cir.1993). The plaintiffs are asking us to innovate boldly in the name of the Illinois courts, and such a request is better addressed to those courts than to a federal court. If the plaintiffs had filed this case in an Illinois state court and it had been removed to the federal district court, they would have had no choice, and then we would have been duty-bound to be as innovative as we thought it plausible to suppose the Illinois courts would be. But the plaintiffs filed this suit in the district court originally — they chose the federal forum. And we have said before and will say again that plaintiffs who seek innovations in state law are ill advised to choose a federal court as their forum. Anderson v. Marathon Petroleum Co., 801 F.2d 936, 942 (7th Cir.1986); Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir.1985). To any suggestion that the outer bounds of liability should be left to a jury to decide we reply that in cases involving the rights protected by the speech and press clauses of the First Amendment the courts insist on firm judicial control of the jury. For the general principle, see New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964); Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6, 11, 90 S.Ct. 1537, 1540, 26 L.Ed.2d 6 (1970), and Bose Corp. v. Consumer Union, 466 U.S. 485, 505-11, 104 S.Ct. 1949, 1962-65, 80 L.Ed.2d 502 (1984); for its application in privacy cases, see Anonsen v. Donahue, supra, 857 S.W.2d at 704-06; Gilbert v. Medical Economics Co., supra, 665 F.2d at 309-10 n. 1, and Campbell v. Seabury Press, supra, 614 F.2d at 397. The publication of books is not at the sufferance of juries.

            Does it follow, as the Hayneses' lawyer asked us rhetorically at oral argument, that a journalist who wanted to write a book about contemporary sexual practices could include the intimate details of named living persons' sexual acts without the persons' consent? Not necessarily, although the revelation of such details in the memoirs of former spouses and lovers is common enough and rarely provokes a lawsuit even when the former spouse or lover is still alive. The core of the branch of privacy law with which we have been dealing in this case is the protection of those intimate physical details the publicizing of which would be not merely embarrassing 1235*1235 and painful but deeply shocking to the average person subjected to such exposure. The public has a legitimate interest in sexuality, but that interest may be outweighed in such a case by the injury to the sensibilities of the persons made use of by the author in such a way. Restatement (Second) of Torts, supra, § 652D, comment h. At least the balance would be sufficiently close to preclude summary judgment for the author and publisher. Miller v. Motorola, Inc., 202 Ill.App.3d 976, 148 Ill.Dec. 303, 306, 560 N.E.2d 900, 903 (1990); Garner v. Triangle Publications, Inc., 97 F.Supp. 546, 550 (S.D.N.Y.1951).

The judgment for the defendants is

AFFIRMED.

PER CURIAM.

            Plaintiffs appeal as of right from a circuit court order that granted summary disposition for defendants Lynn Mills and Sister Lois Mitoraj. We affirm in part, reverse in part, and remand.

I

            Plaintiffs, using pseudonyms to protect their identity, commenced this action against defendants Lynn Mills, Sister Lois Mitoraj, and Mitoraj's religious order, The Felician Sisters of O.S.F. of Livonia, for the torts of invasion of privacy and intentional infliction of emotional distress. According to plaintiffs' complaint, defendants Mills and Mitoraj (hereinafter defendants), while protesting outside the Women's Advisory Center in Livonia, displayed the real names of plaintiffs Jane Doe and Sally Roe on "large signs" that were "held up for public view." The signs indicated that Doe and Roe were about to undergo abortions and implored them, inter alia, not to "kill their babies." Plaintiffs alleged that they did not give defendants permission to publicize the fact of their abortions. To the contrary, it was plaintiffs' intent to "keep the fact of their abortions private, confidential, and free from any publicity."

            Plaintiffs alleged two different theories of invasion of privacy. Count II was labeled "public disclosure of private facts" and count III was labeled "intrusion upon seclusion." In addition, plaintiffs brought a claim for intentional infliction of emotional distress.

            Defendants Mills and Mitoraj brought a motion 78*78 for summary disposition pursuant to MCR 2.116(C) (8) and (10).[1] The motion was supported by the affidavits of Robert Thomas, a nonparty, and defendant Mills. Thomas stated in his affidavit that he went to the Women's Advisory Center on June 1, 1991, at approximately 10:30 P.M., and climbed into a refuse dumpster that was located in the parking lot. Inside the dumpster, Thomas found a piece of paper indicating that plaintiffs Doe and Sally Roe were about to undergo abortions. Thomas gave this information to Mills the following day. Mills stated in her affidavit that she and Mitoraj went to the Women's Advisory Center on June 8, 1991, believing that Doe and Sally Roe would be arriving that day to have an abortion. Mills claimed that it was her intent to persuade both Doe and Sally Roe not to have an abortion and, therefore, she placed their names on two separate signs in order to "capture [their] attention." Mills took one sign and Mitoraj the other, and then both of them held the signs up for public view while positioned at the entrance to the Women's Advisory Center's parking lot.

            In opposition to defendants' motion, plaintiffs submitted a portion of Mills' deposition testimony wherein Mills admitted that, before displaying the signs, she was aware that Thomas had obtained the information concerning plaintiffs from the garbage at the Women's Advisory Center. Plaintiffs did not submit any evidence indicating that either defendant was involved along with Thomas in obtaining the information from the garbage.

            In an opinion dated November 9, 1993, the trial court granted defendants summary disposition of each of the two claims of invasion of privacy as well as the claim for intentional infliction of emotional distress. Plaintiffs appeal.

79*79 II

            MCR 2.116(C)(8) permits summary disposition when the "opposing party has failed to state a claim on which relief can be granted." Under MCR 2.116(C)(8), only the pleadings are examined and the court must determine whether the pleadings allege a prima facie case. Radtke v Everett, 442 Mich 368, 373; 501 NW2d 155 (1993); Azzar v Primebank, FSB, 198 Mich App 512, 516; 499 NW2d 793 (1993). All well-pleaded facts must be accepted as true. Radtke, supra. Only if the allegations fail to state a legal claim will summary disposition pursuant to MCR 2.116(C)(8) be proper. Id.

            MCR 2.116(C)(10) tests the factual basis underlying a claim. Summary disposition is permitted under MCR 2.116(C)(10) when "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." In ruling on such a motion, the court must consider the pleadings, together with any affidavits, depositions, admissions, or other evidence submitted by the parties. Radtke, supra at 374. The court must give the benefit of any reasonable doubt to the opposing party and may not grant the motion unless, after reviewing the pleadings and supporting documents, it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Stevens v McLouth Steel Products Corp, 433 Mich 365, 370; 446 NW2d 95 (1989).

III

            Plaintiffs first argue that the trial court erred in dismissing their two claims of invasion of privacy.

            The tort of invasion of privacy is based on a 80*80 common-law right to privacy, which is said to protect against four types of invasion of privacy: (1) intrusion upon the plaintiff's seclusion or solitude or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Tobin v Civil Service Comm, 416 Mich 661, 672; 331 NW2d 184 (1982); Lewis v Dayton-Hudson Corp, 128 Mich App 165, 168; 339 NW2d 857 (1983). Only the first two types of claims are involved in this case. We find that the trial court erred in dismissing plaintiffs' claim for public disclosure of embarrassing private facts, but that summary disposition of the claim regarding intrusion upon seclusion was proper.

A. PUBLIC DISCLOSURE OF EMBARRASSING PRIVATE FACTS

            A cause of action for public disclosure of embarrassing private facts requires (1) the disclosure of information (2) that is highly offensive to a reasonable person and (3) that is of no legitimate concern to the public. Winstead v Sweeney, 205 Mich App 664, 668; 517 NW2d 874 (1994); Duran v Detroit News, Inc, 200 Mich App 622, 631; 504 NW2d 715 (1993).

            Plaintiffs meet the first element of this action because they allege that defendants, while protesting in public, disclosed information publicizing their decision to have an abortion.

Regarding the second element, the trial court stated:

The words on the placards that were carried by the defendants conveyed the message that plaintiffs 81*81 were contemplating and or scheduling an abortion. This is the disclosed information. Would plaintiffs seriously suggest or argue that one who contemplates or schedules an abortion has committed an act that is highly offensive to a reasonable person?

            We disagree with the trial court to the extent it suggested the disclosure of the information was not actionable as a matter of law.

            In analyzing a claim of invasion of privacy, courts generally have embraced the provisions of the Restatement of Torts describing that tort. See Tobin, supra at 672-673; Winstead, supra at 668, 675.

            The Restatement of Torts describes the type of publicity that will give rise to an action for public disclosure of embarrassing private facts:

The rule stated in this Section gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable man.... It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises. [3 Restatement Torts, 2d, § 652D, comment c, p 387.]

            Whether a public disclosure involves "embarrassing private facts" has been held to be a question of fact for the jury. Beaumont v Brown, 401 Mich 80, 106; 257 NW2d 522 (1977); Winstead, supra at 673; YG & LG v Jewish Hosp of St Louis, 795 SW2d 488, 503 (Mo App, 1990).

            Here, plaintiffs allege that defendants publicized the fact of their abortions despite their intent to keep this matter "private, confidential, and free from any publicity." Plaintiffs further allege that the publicity given by defendants was highly offensive 82*82 and was deliberately calculated to embarrass and humiliate them, which it allegedly did. We cannot say that a reasonable person would not be justified in feeling seriously aggrieved by such publicity. Rather, we find that plaintiffs' allegations are sufficient to constitute a question for the jury regarding whether embarrassing private facts were involved in a public disclosure.

            In order to satisfy the final element of an action for public disclosure of embarrassing private facts, the information disclosed must concern the individual's private life. Liability will not be imposed for giving publicity to matters that are already of public record or otherwise open to the public. Winstead, supra; Ledsinger v Burmeister, 114 Mich App 12; 318 NW2d 558 (1982).

            In describing those matters that will support an action for public disclosure of private facts, the Restatement of Torts states:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters. [3 Restatement Torts, 2d, § 652D, comment b, p 386.]

            The Restatement of Torts also notes that the extent of the authority to make public private facts about a public figure is not unlimited:

There may be some intimate details of [a motion picture actress'] life, such as sexual relations, which even the actress is entitled to keep to herself. [3 Restatement Torts, 2d, § 652D, comment h, p 391.]

            Matters concerning a person's medical treatment 83*83 or condition are also generally considered private. See, e.g., MCL 600.2157; MSA 27A.2157; Swickard v Wayne Co Medical Examiner, 438 Mich 536, 560; 475 NW2d 304 (1991). See also YG & LG, supra at 500.

            In this case, the trial court observed that the subject of abortion is one of public interest and, for that reason, intimated that plaintiffs could not satisfy the final element:

It is this court's opinion that abortion, no matter how one views this subject, is unquestionably a matter of great public concern.... Because abortions are so controversial in our society, events surrounding abortions do attract considerable public attention, witness the heavy picketing of abortion clinics and the extensive amount of publicity the subject of abortion receives. So, it is doubtful that plaintiffs could ever establish the third element of this cause of action because plaintiffs were involved in an event that attracts public attention.

We disagree with the trial court's reasoning.

"The fact that [persons] engage in an activity in which the public can be said to have a general interest does not render every aspect of their lives subject to public disclosure. 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." [Winstead, supra at 674, quoting Virgil v Time, Inc, 527 F2d 1122, 1131 (CA 9, 1975).]

            The Missouri Court of Appeals applied this principle in YG & LG, supra. In that case, the plaintiffs sued a television station for invasion of privacy 84*84 after the station filmed the plaintiffs' participation in a hospital's in vitro fertilization program without the plaintiffs' consent. The Missouri Court of Appeals agreed that a private matter was involved, notwithstanding the public's interest in in vitro fertilization:

The in vitro program and its success may well have been matters of public interest, but the identity of the plaintiffs participating in the program was, we conclude, a private matter. It did concern matters of procreation and sexual relations as well as medical treatment — all private matters. The in vitro fertilization program participation was certainly not a matter of public record nor did it become of public concern due to any of the ordinary incidents of public concern. [795 SW2d at 500.]

            Likewise, in this case, plaintiffs' complaint alleges a private matter. The alleged disclosure concerns the plaintiffs' decisions to have an abortion. We have no hesitancy in concluding that such an allegation involves a matter that a reasonable person would consider private. Indeed, abortion concerns matters of sexual relations and medical treatment, both of which are regarded as private matters. Furthermore, even though the abortion issue may be regarded as a matter of public interest, the plaintiffs' identities in this case were not matters of legitimate public concern, nor a matter of public record, but, instead, were purely private matters. We conclude, therefore, that plaintiffs' allegations are sufficient to meet the minimum prima facie showing necessary to establish that the information disclosed must concern a private matter.[2]

            85*85 Accordingly, we find that plaintiffs have alleged a prima facie case of public disclosure of embarrassing private facts, thereby making summary disposition for the defendants pursuant to MCR 2.116(C)(8) improper.

            The trial court ruled that, even if plaintiffs had alleged a cause of action for public disclosure of embarrassing private facts, summary disposition was still warranted pursuant to MCR 2.116(C)(10), given that the undisputed facts showed that defendants had learned of each plaintiff's decision to have an abortion from a document that was obtained from the trash at the Women's Advisory Center. Relying on cases construing the scope of protection under the Fourth Amendment of the United States Constitution,[3] the trial court ruled that, because information concerning plaintiffs' decisions to have an abortion had been discarded into the trash, plaintiffs had lost their right of privacy with respect to that information.

            The flaw in the trial court's analysis is that plaintiffs' action is not based on a constitutional right of privacy, but on a right of privacy under the common law. Tobin, supra at 672; Beaumont, supra at 95. As was observed by the court in McNally v Pulitzer Publishing Co, 532 F2d 69, 76 (CA 8, 1976), "[t]he constitutional right of privacy is not to be equated with the common law right recognized by state tort law."

            Along these same lines, the United States Supreme Court in Katz v United States, 389 US 347, 350-351; 88 S Ct 507; 19 L Ed 2d 576 (1967), stated:

86*86 [T]he Fourth Amendment cannot be translated into a general constitutional "right of privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy — his right to be let alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual States.

            Courts from this state have likewise recognized that the scope of privacy under the common law is not coextensive with a constitutional right to privacy. Swickard, supra at 547, 556; Tobin, supra at 671-677; Beaumont, supra at 95.

            Furthermore, while the aim of the Fourth Amendment is to provide "protect[ion of] individual privacy against certain kinds of governmental intrusion," Katz, supra at 350, an action for public disclosure of embarrassing private facts is concerned, not with governmental intrusions, but with protecting a person's common-law right to be free of unreasonable or unnecessary publicity of one's private matters, Beaumont, supra at 104-105.

            We conclude, therefore, that the trial court erred in relying on cases construing the Fourth Amendment as a basis for concluding that plaintiffs had somehow lost their common-law privacy rights.

            Although it is possible for the right of privacy to be waived or lost by a course of conduct that estops its assertion, Earp v Detroit, 16 Mich App 271, 278, n 5; 167 NW2d 841 (1969), the facts of this case do not establish any waiver. It has been said that "`[t]here can never be a waiver of the right of privacy, in the absence of knowledge and 87*87 consent of the person entitled to waive.'" Id., quoting 77 CJS, Right of Privacy, § 6, p 414. Moreover, an implied waiver requires a "clear, unequivocal, and decisive act of the party showing such a purpose." 62A Am Jur 2d, Privacy, § 226, p 836.

            According to the undisputed facts in this case, a nonparty learned of plaintiffs' decisions to have an abortion from a document that had been discarded into the trash. There is no evidence that either plaintiff personally discarded the document or had knowledge that the document was discarded. Moreover, even if plaintiffs had discarded the document, such an act does not demonstrate consent to having information in that document publicly disclosed. Therefore, the facts do not establish a waiver of plaintiffs' common-law privacy rights.

            Defendants also maintain that the undisputed facts show that they did not give publicity to a private matter because the Women's Advisory Center is located in a public place and plaintiffs' "comings and goings to the clinic were acts exposed to the public eye." The information disclosed, however, concerned an activity that took place within the private confines of the clinic, a matter which was not "exposed to the public eye." Also, merely because plaintiffs' "comings and goings" may have been visible to members of the public does not mean that the public was aware of the precise purpose of those "comings and goings." Moreover, we agree with the court in YG & LG, supra, which held, in a similar context, that the plaintiffs there did not lose their privacy rights with respect to their participation in an in vitro fertilization program merely because they attended the program at a public hospital. The court noted:

By so attending this limited gathering, [the 88*88 plaintiffs] did not waive their right to keep their condition and the process of in vitro private, in respect to the general public.

* * *

In addition, we cannot hold that attendance at the gathering constituted an appearance in a public place so as to subject appellants to publicity. [795 SW2d at 502-503.]

            Therefore, for the reasons stated, we reverse the trial court's judgment granting the defendants' motion for summary disposition of plaintiffs' claim for public disclosure of embarrassing private facts.

B. INTRUSION UPON SECLUSION

            An action for intrusion upon seclusion focuses on the manner in which information is obtained, not its publication; it is considered analogous to a trespass. Tobin, supra at 673-674; Lewis, supra at 168. There are three necessary elements to establish a prima facie case of intrusion upon seclusion: (1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable man. Tobin, supra at 672.

            In this case, the alleged wrongful actions that form the basis of plaintiffs' claim of intrusion relate only to the publication of information, not to any wrongful intrusion. Specifically, plaintiffs' complaint alleges:

Defendants intentionally intruded upon the private affairs of the Plaintiffs by publicizing the fact that Jane Doe and Sally Roe intended to undergo abortions. [Emphasis added.]

            In Tobin, our Supreme Court noted that an action 89*89 for intrusion does not exist where "[t]he only aspect of the contemplated disclosure offensive to the plaintiffs is the fact of disclosure, not the method by which it was obtained." Tobin, supra at 674. That is exactly the situation in this case. Therefore, because plaintiffs' complaint alleges only the fact of disclosure and does not allege any offensive intrusion, we conclude that summary disposition of plaintiffs' intrusion claim was proper pursuant to MCR 2.116(C)(8).

            Although not specifically alleged, plaintiffs argue that a cause of action for intrusion exists because the evidence shows that the information about plaintiffs was obtained from a garbage dumpster at the Women's Advisory Center.[4] The trial court rejected this argument, however, noting that, even if the search of the garbage could be considered a wrongful intrusion, the undisputed facts showed that the search was conducted by Robert Thomas, a nonparty, and there was no evidence showing that either defendant was involved along with Thomas in obtaining the information from the garbage.

            Plaintiffs insist, however, that liability still may be imposed under an intrusion theory because defendant Mills admitted in her deposition that she was aware of the source of the information before publicizing it. We disagree.

            In Pearson v Dodd, 133 US App DC 279; 410 F2d 701 (1969), Dodd brought an action for invasion of privacy after two former employees removed some confidential files from Dodd's office and turned them over to Pearson and Anderson, who later published the information. The court rejected 90*90 Dodd's claim that liability could be imposed on Pearson and Anderson under an intrusion theory of invasion of privacy, even if they were aware at the time of publication that the information had been obtained by improper means. The court stated:

The question then becomes whether appellants Pearson and Anderson improperly intruded into the protected sphere of privacy of appellee Dodd in obtaining the information on which their columns were based. In determining this question, we may assume, without deciding, that appellee's employees and former employees did commit such an improper intrusion when they removed confidential files with the intent to show them to unauthorized outsiders.

Although appellee's complaint charges that appellants aided and abetted in the removal of the documents, the undisputed facts, narrowed by the District Judge with the concurrence of counsel, established only that appellants received copies of the documents knowing that they had been removed without authorization. If we were to hold appellants liable for invasion of privacy on these facts, we would establish the proposition that one who receives information from an intruder, knowing it has been obtained by improper intrusion, is guilty of a tort....

Of course, appellants did more than receive and peruse the copies of the documents taken from appellee's files; they published excerpts from them in the national press. But in analyzing a claimed breach of privacy, injuries from intrusion and injuries from publication should be kept clearly separate. [Id. at 282-283.]

            This rationale is directly applicable to the instant case and persuades us that Mills' mere receipt of the information from Thomas, even with knowledge of its source, is insufficient to subject her to liability under an intrusion theory.

            91*91 Accordingly, we conclude that summary disposition of plaintiffs' claim of intrusion upon seclusion was proper.

IV

            Plaintiffs next argue that the trial court erred in dismissing their claim of intentional infliction of emotional distress. The elements of this tort are: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Linebaugh v Sheraton Michigan Corp, 198 Mich App 335, 342; 497 NW2d 585 (1993).

            The trial court ruled that, while plaintiffs sufficiently had alleged a cause of action for intentional infliction of emotional distress, summary disposition was justified pursuant to MCR 2.116(C) (10), because the facts before the court failed to demonstrate that defendants engaged in conduct that could be considered extreme and outrageous. We disagree.

            Liability for the intentional infliction of emotional distress has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Linebaugh, supra. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Id. It has been said that the case is generally one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Roberts v Auto-Owners Ins Co, 422 Mich 594, 603; 374 NW2d 905 (1985).

            92*92 In reviewing such a claim, it is initially for the court to determine whether the defendant's conduct reasonably may be regarded as so extreme and outrageous as to permit recovery. Sawabini v Desenberg, 143 Mich App 373, 383; 372 NW2d 559 (1985). However, "[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability." 1 Restatement Torts, 2d, § 46, comment h, p 77. See also Linebaugh, supra at 342-343 (whether conduct is sufficiently outrageous and extreme to render one liable for the intentional infliction of emotional distress is a matter for determination by the trier of fact).

            The conduct in this case involved defendants identifying plaintiffs by name and publicizing the fact of their abortions by displaying such information on large signs that were held up for public view. In ruling that defendants' conduct was not sufficiently extreme and outrageous so as to permit recovery, the trial court was influenced in part by its conclusion that the information disclosed did not concern a private matter, inasmuch as it was obtained from a document that had been discarded into the trash. As we discussed previously, however, the trial court erred in reaching this conclusion. The trial court also observed that defendants have a constitutional right to "protest peaceably against abortion." However, the objectionable aspect of defendants' conduct does not relate to their views on abortion or their right to express those views, but, rather, to the fact that defendants gave unreasonable or unnecessary publicity to purely private matters involving plaintiffs. Finally, the trial court observed that there is no statute prohibiting the kind of activity engaged in by defendants. 93*93 It is not necessary, however, that a defendant's conduct constitute a statutory violation in order for it to be found extreme and outrageous.

            We are of the opinion that the trial court erred in granting the defendants' motion for summary disposition of plaintiffs' claim of intentional infliction of emotional distress. Defendants' conduct involved more than mere insults, indignities, threats, annoyances, or petty oppressions. We believe this is the type of case that might cause an average member of the community, upon learning of defendants' conduct, to exclaim, "Outrageous!" Because reasonable men may differ with regard to whether defendants' conduct may be considered sufficiently outrageous and extreme so as to subject them to liability for intentional infliction of emotional distress, this matter should be determined by the trier of fact.

            Accordingly, we reverse the trial court's decision granting the defendants' motion for summary disposition of plaintiffs' claim of intentional infliction of emotional distress.

            Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.

            [*] Former Supreme Court justice, sitting on the Court of Appeals by assignment.

            [1] Summary disposition previously had been granted for the Felician Sisters of O.S.F. of Livonia. That ruling has not been appealed.

            [2] See also Winstead, supra, wherein this Court concluded that a cause of action for public disclosure of embarrassing private facts may exist where a newspaper published intimate details about the plaintiff's private life, including the fact that she had several abortions.

            [3] See California v Greenwood, 486 US 35, 40; 108 S Ct 1625; 100 L Ed 2d 30 (1988) (holding that, for purposes of federal constitutional law, a person does not possess a reasonable expectation of privacy with respect to trash discarded outside the home). See also People v Whotte, 113 Mich App 12, 20-21; 317 NW2d 266 (1982).

            [4] Where a motion is brought pursuant to MCR 2.116(C)(8) or (10), MCR 2.116(I)(5) provides that "the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified."

FULD, Chief Judge.

            On this appeal, taken by permission of the Appellate Division on a certified question, we are called upon to determine the reach of the tort of invasion of privacy as it exists under the law of the District of Columbia.

            The complaint, in this action by Ralph Nader, pleads four causes of action against the appellant, General Motors Corporation, and three other ***650 defendants allegedly acting as its agents.*564 The first two causes of action charge an invasion of privacy, the third is predicated on the intentional infliction of severe emotional distress and the fourth on interference with the plaintiff's economic advantage. This appeal concerns only the legal sufficiency of the first two causes of action, which were upheld in the courts below as against the appellant's motion to dismiss (CPLR 3211, subd. (a), par. 7).

            The plaintiff, an author and lecturer on automotive safety, has, for some years, been an articulate and severe critic of General Motors' products from the standpoint of safety and design. According to the complaint—which, for present purposes, we must assume to be true—the appellant, having learned of the imminent publication of the plaintiff's book ‘Unsafe at any Speed,’ decided to conduct a campaign of intimidation against him in order to ‘suppress plaintiff's criticism of and prevent his disclosure of information’ about its products. To that end, the appellant authorized and directed the other defendants to engage in a series of activities which, the plaintiff claims in his first two causes of action, violated his right to privacy.1

            Specifically, the plaintiff alleges that the appellant's agents (1) conducted a series of interviews with acquaintances of the plaintiff, ‘questioning them about, and casting aspersions upon (his) political, social * * * racial and religious views * * *; his integrity; his sexual proclivities and inclinations; and his personal habits' (Complaint, par. 9(b)); (2) kept him under surveillance in public places for an unreasonable length of time (par. 9(c)); (3) caused him to be accosted by girls for the purpose of entrapping him into illicit relationships (par. 9(d)); (4) made threatening, harassing and obnoxious telephone calls to him (par. 9(e)); (5) tapped his telephone and eavesdropped, by means of mechanical and electronic equipment, on his private conversations with others (par. 9(f)); and (6) conducted a ‘continuing’ and harassing investigation of him *565(par. 9(g)). These charges are amplified in the plaintiff's bill of particulars, and those particulars are, of course, to be taken into account in considering the sufficiency of the challenged causes of action. (See Bolivar v. Monnat, 232 App.Div. 33, 34, 248 N.Y.S. 722, 725; see, also, 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3211.43.)

            The threshold choice of law question requires no extended discussion. In point of fact, the parties have agreed—at least for purposes ***651 of this motion—that the sufficiency of these allegations is to be determined under the law of the District of Columbia. The District is the jurisdiction in which most of the acts are alleged to have occurred, and it was there, too, that the plaintiff lived and suffered the impact **768 of those acts. It is, in short, the place which has the most significant relationship with the subject matter of the tort charged. (See, e.g., Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1.)

            3Turning, then, to the law of the District of Columbia, it appears that its courts have not only recognized a common-law action for invasion of privacy but have broadened the scope of that tort beyond its traditional limits. (See Pearson v. Dodd, 133 U.S.App.D.C. 279, 410 F.2d 701; Afro-American Pub. Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649; Peay v. Curtis Pub. Co., D.C., 78 F.Supp. 305; see, also Bloustein, Privacy as an Aspect of Human Dignity, 39 N.Y.U.L.Rev. 962, 977; Prosser, Privacy, 48 Cal.L.Rev. 383, 389 et seq.) Thus, in the most recent of its cases on the subject, Pearson v. Dodd (133 U.S.App.D.C. 279, 410 F.2d 701, Supra), the Federal Court of Appeals for the District of Columbia declared (p. 704):

            'We approve the extension of the tort of invasion of privacy to instances of Intrusion, whether by physical trespass or not, into spheres from which an ordinary man in a plaintiff's position could reasonably expect that the particular defendant should be excluded.' (Italics supplied.)

            It is this form of invasion of privacy—initially termed ‘intrusion’ by Dean Prosser in 1960 (Privacy, 48 Cal.L.Rev. 383, 389 et seq.; Torts, s 112)—on which the two challenged causes of action are predicated.

            Quite obviously, some intrusions into one's private sphere are inevitable concomitants of life in an industrial and densely *566 populated society, which the law does not seek to proscribe even if it were possible to do so. ‘The law does not provide a remedy for every annoyance that occurs in everyday life.’ (Kelley v. Post Pub. Co., 327 Mass. 275, 278, 98 N.E.2d 286, 287.) However, the District of Columbia courts have held that the law should and does protect against certain types of intrusive conduct, and we must, therefore, determine whether the plaintiff's allegations are actionable as violations of the right to privacy under the law of that jurisdiction. To do so, we must, in effect, predict what the judges of that jurisdiction's highest court would hold if this case were presented to them. (See, e.g., Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 359, 162 A.L.R. 318, per Frank, J.) In other words, what would the Court of Appeals for the District of Columbia say is the character of the ‘privacy’ sought to be protected? More specifically, would that court accord an individual a right, as the plaintiff ***652 before us insists, to be protected against any interference whatsoever with his personal seclusion and solitude? Or would it adopt a more restrictive view of the right, as the appellant urges, merely protecting the individual from intrusion into ‘something secret,’ from snooping and paying into his private affairs?

            The classic article by Warren and Brandeis (The Right to Privacy, 4 Harv.L.Rev. 193)—to which the court in the Pearson case referred as the source of the District's common-law action for invasion of privacy (410 F.2d, at p. 703)—was premised, to a large extent, on principles originally developed in the field of copyright law. The authors thus based their thesis on a right granted by the common law to ‘each individual * * * of determining, ordinarily, to what extent his thoughts, sentiments and emotions shall be communicated to others' (4 Harv.L.Rev., at p. 198). Their principal concern appeared to be not with a broad ‘right to be let alone’ (Cooley, (Cooley, Torts (2d ed.), p. 29) but, rather, with the right to protect oneself from having one's private affairs known to others and to keep secret or intimate facts about oneself from the prying eyes or ears of others.

            In recognizing the existence of a common-law cause of action for invasion of privacy in the District of Columbia, the Court of Appeals has expressly adopted this latter formulation of the*567 nature of the right. (See, e.g., **769 Afro-American Pub. Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649, 653, Supra.) Quoting from the Restatement, Torts (s 867), the court in the Jaffe case (366 F.2d, at p. 653) has declared that ‘(l)iability attaches to a person ‘who unreasonably and seriously interferes with another's interest in Not having his affairs known to others.‘‘ (Emphasis supplied.) And, in Pearson, where the court extended the tort of invasion of privacy to instances of ‘intrusion,’ it again indicated, contrary to the plaintiff's submission, that the interest protected was one's right to keep knowledge about oneself from exposure to others, the right to prevent ‘the obtaining of the information by improperly intrusive means' (410 F.2d, at p. 704; emphasis supplied). In other jurisdictions, too, the cases which have recognized a remedy for invasion of privacy founded upon intrusive conduct have generally involved the gathering of private facts or information through improper means. (See, e.g., Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239, 11 A.L.R.3d 1288; Ford Motor Co. v. Williams, 108 Ga.App. 21, 132 S.E.2d 206; LeCrone v. Ohio Bell Tel. Co., 120 Ohio App. 129, 201 N.E.2d 533; see, also, Bloustein, Privacy as an Aspect of Human Dignity, 39 N.Y.U.L.Rev. 962, 972. But cf. Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340.)

            It should be emphasized that the mere gathering of information about a particular individual does not give rise to a cause of action ***653 under this theory. Privacy is invaded only if the information sought is of a confidential nature and the defendant's conduct was unreasonably intrusive. Just as a common-law copyright is lost when material is published, so, too, there can be no invasion of privacy where the information sought is open to public view or has been voluntarily revealed to others. (See Forster v. Manchester, 410 Pa. 192, 189 A.2d 147;Tucker v. American Employers' Ins. Co., 171 So.2d 437, 13 A.L.R.3d 1020 (Fla.App.); see, also, Prosser, Torts (3d ed.), p. 835; Restatement, 2d, Torts, Tent. Draft No. 13, s 652B, comment C.) In order to sustain a cause of action for invasion of privacy, therefore, the plaintiff must show that the appellant's conduct was truly ‘intrusive’ and that it was designed to elicit information which would not be available through normal inquiry or observation.

            The majority of the Appellate Division in the present case stated that All of ‘(t)he activities complained of’ in the first *568 two counts constituted actionable invasions of privacy under the law of the District of Columbia (31 A.D.2d, at p. 394, 298 N.Y.S.2d at p. 139).2 We do not agree with that sweeping determination. At most, only two of the activities charged to the appellant are, in our view, actionable as invasions of privacy under the law of the District of Columbia (Infra, pp. 568—571). However, since the first two counts include allegations which are sufficient to state a cause of action, we could—as the concurring opinion notes (p. 571)—merely affirm the order before us without further elaboration. To do so, though, would be a disservice both to the judge who will be called upon to try this case and to the litigants themselves. In other words, we deem it desirable, nay essential, that we go further and, for the guidance of the trial court and counsel, indicate the extent to which the plaintiff is entitled to rely on the various allegations in support of his privacy claim.

            In following such a course, we are prompted not only by a desire to avoid any misconceptions that might stem from the opinion below but also by recognition of the fact that we are dealing with a new and developing area of the law. Indeed, **770 we would fail to meet our responsibility if we were to withhold determination—particularly since the parties have fully briefed and argued the points involved—and thereby thrust upon the trial judge the initial burden of appraising the impact of a doctrine still in the process of growth and of predicting its reach in another jurisdiction.

            ***654 Turning, then, to the particular acts charged in the complaint, we cannot find any basis for a claim of invasion of privacy, under District of Columbia law, in the allegations that the appellant, through its agents or employees, interviewed many persons who knew the plaintiff, asking questions about him and casting aspersions on his character. Although those inquiries may have uncovered information of a personal nature, it is difficult to see how they may be said to have invaded the plaintiff's privacy. *569 Information about the plaintiff which was already known to others could hardly be regarded as private to the plaintiff. Presumably, the plaintiff had previously revealed the information to such other persons, and he would necessarily assume the risk that a friend or acquaintance in whom he had confided might breach the confidence. If, as alleged, the questions tended to disparage the plaintiff's character, his remedy would seem to be by way of an action for defamation, not for breach of his right to privacy. (Cf. Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 458—459, 280 N.Y.S.2d 641, 643—644, 227 N.E.2d 572, 573—574.)

            Nor can we find any actionable invasion of privacy in the allegations that the appellant caused the plaintiff to be accosted by girls with illicit proposals, or that it was responsible for the making of a large number of threatening and harassing telephone calls to the plaintiff's home at odd hours. Neither of these activities, howsoever offensive and disturbing, involved intrusion for the purpose of gathering information of a private and confidential nature.

            As already indicated, it is manifestly neither practical nor desirable for the law to provided a remedy against any and all activity which an individual might find annoying. On the other hand, where severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for the intentional infliction of emotional distress—the theory underlying the plaintiff's third cause of action. But the elements of such an action are decidedly different from those governing the tort of invasion of privacy, and just as we have carefully guarded against the use of the prima facie tort doctrine to circumvent the limitations relating to other established tort remedies (see Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 458—459, 280 N.Y.S.2d 641, 643—644, 227 N.E.2d 572, 573—574,Supra), we should be wary of any attempt to rely on the tort of invasion of privacy as a means of avoiding the more stringent pleading and proof requirements for an action for infliction of emotional distress. (See, e.g., Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 105 F.2d 62, 65).

            Apart, however, from the foregoing allegations which we find inadequate to spell out a cause of action for invasion of privacy under ***655 District of Columbia law, the complaint contains allegations concerning other activities by the appellant or its agents *570 which do satisfy the requirements for such a cause of action. The one which most clearly meets those requirements is the charge that the appellant and its codefendants engaged in unauthorized wiretapping and eavesdropping by mechanical and electronic means. The Court of Appeals in the Pearson case expressly recognized that such conduct constitutes a tortious intrusion (133 U.S.App.D.C. 279, 410 F.2d 701, 704, Supra), and other jurisdictions have reached a similar conclusion. (See, e.g., Hamberger v. Eastman, 106 N.H. 107, 112, 206 A.2d 239, Supra; **771 Roach v. Harper, 143 W.Va. 869, 877, 105 S.E.2d 564; Fowler v. Southern Bell Tel. & Tel. Co., 5 Cir., 343 F.2d 150, 156.)3 In point of fact, the appellant does not dispute this, acknowledging that, to the extent the two challenged counts charge it with wiretapping and eavesdropping, an actionable invasion of privacy has been stated.

            There are additional allegations that the appellant hired people to shadow the plaintiff and keep him under surveillance. In particular, he claims that, on one occasion, one of its agents followed him into a bank, getting sufficiently close to him to see the denomination of the bills he was withdrawing from his account. From what we have already said, it is manifest that the mere observation of the plaintiff in a public place does not amount to an invasion of his privacy. But, under certain circumstances, surveillance may be so ‘overzealous' as to render it actionable. (See Pearson v. Dodd, 133 U.S.App.D.C. 279, 410 F.2d 701, 704, Supra; Pinkerton Nat. Detective Agency, Inc. v. Stevens, 108 Ga.App. 159, 132 S.E.2d 119.) Whether or not the surveillance in the present case falls into this latter category will depend on the nature of the proof. A person does not automatically make public everything he does merely by being in a public place, and the mere fact that Nader was in a bank did not give anyone the right to try to discover the amount of money he was withdrawing. On the other hand, if the plaintiff acted in such a way as to reveal that fact to any casual observer, then, it may not be said that the appellant *571 intruded into his private sphere. In any event, though, it is enough for present purposes to say that the surveillance allegation is not insufficient as a matter of law.

            Since, then, the first two causes of action do contain allegations which are adequate to state a cause of action for invasion of privacy under District of Columbia law, the courts below properly denied the appellant's motion to dismiss those causes of action. It is settled ***656that, so long as a pleading sets forth allegations which suffice to spell out a claim for relief, it is not subject to dismissal by reason of the inclusion therein of additional nonactionable allegations. (See Spano v. Perini Corp., 25 N.Y.2d 11, 18, 302 N.Y.S.2d 527, 532, 250 N.E.2d 31, 35;see, also, Tompkins v. State of New York, 7 N.Y.2d 906, 907, 197 N.Y.S.2d 475, 476, 165 N.E.2d 424, 425; Rager v. McCloskey, 305 N.Y. 75, 80, 111 N.E.2d 214, 217.)

            We would but add that the allegations concerning the interviewing of third persons, the accosting by girls and the annoying and threatening telephone calls, though insufficient to support a cause of action for invasion of privacy, are pertinent to the plaintiff's third cause of action—in which those allegations are reiterated—charging the intentional infliction of emotional distress. However, as already noted, it will be necessary for the plaintiff to meet the additional requirements prescribed by the law of the District of Columbia for the maintenance of a cause of action under that theory.

The order appealed from should be affirmed, with costs, and the question certified answered in the affirmative.

BREITEL, Judge (concurring in result).

            There is no doubt that the first and second causes of action are sufficient in alleging an invasion of privacy under what appears to be the applicable law in the District of Columbia (Pearson v. Dodd, 133 U.S.App.D.C. 279, 410 F.2d 701, 704; Afro-American Pub. Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649, 653—654.) This should be the end of this court's proper concern with the pleadings, the only matter before the court being a motion to **772 dismiss specified causes of action for insufficiency.

            Thus it is not proper, it is submitted, for the court directly or indirectly to analyze particular allegations in the pleadings, once the causes of action are found sufficient, in order to determine whether they would alternatively sustain one cause of action *572 or another, or whether evidence offered in support of the allegations is relevant only as to one rather than to another cause of action. Particularly, it is inappropriate to decide that several of the allegations as they now appear are referable only to the more restricted tort of intentional infliction of mental distress rather than to the common-law right of privacy upon which the first and second causes of action depend. The third cause of action is quite restricted. Thus many of the quite offensive acts charged will not be actionable unless plaintiff succeeds in the very difficult, if not impossible, task of showing that defendants' activities were designed, actually or virtually, to make plaintiff unhappy and not to uncover disgraceful information about him. The real issue in the volatile and developing ***657 law of privacy is whether a private person is entitled to be free of certain grave offensive intrusions unsupported by palpable social or economic excuse or justification.

            True, scholars, in trying to define the elusive concept of the right of privacy, have, as of the present, subdivided the common law right into separate classifications, most significantly distinguishing between unreasonable intrusion and unreasonable publicity (Restatement, 2d, Torts, Tent. Draft No. 13 (April 27, 1967), ss 652A, 652B, 652D; Prosser, Torts (3d ed.), pp. 832—837). This does not mean, however, that the classifications are either frozen or exhausted, or that several of the classifications may not overlap.

            Concretely applied to this case, it is suggested, for example, that it is premature to hold that the attempted entrapment of plaintiff in a public place by seemingly promiscuous ladies is no invasion of any of the categories of the right to privacy and is restricted to a much more limited cause of action for intentional infliction of mental distress. Moreover, it does not strain credulity or imagination to conceive of the systematic ‘public’ surveillance of another as being the implementation of a plan to intrude on the privacy of another. Although acts performed in ‘public’, especially if taken singly or in small numbers, may not be confidential, at least arguably a right to privacy may nevertheless be invaded through extensive or exhaustive monitoring and cataloguing of acts normally disconnected and anonymous.

            *573 These are but illustrations of the problems raised in attempting to determine issues of relevancy and allocability of evidence in advance of a trial record. The other allegations so treated involve harassing telephone calls, and investigatory interviews. It is just as important that while allegations treated singly may not constitute a cause of action, they may do so in combination, or serve to enhance other violations of the right to privacy.

            It is not unimportant that plaintiff contends that a giant corporation had allegedly sought by surreptitious and unusual methods to silence an unusually effective critic. If there was such a plan, and only a trial would show that, it is unduly restrictive of the future trial to allocate the evidence beforehand based only on a pleader's specification of overt acts on the bold assumption that they are not connected causally or do not bear on intent and motive.

            It should be observed, too, that the right to privacy, even as thus far developed, does not always refer to that which is not known to the public or is confidential. Indeed, the statutory right of privacy in this State and perhaps the most traditional right of privacy in the ‘common law sense’ relates to the commercialized publicity of one's face or name, perhaps the two most public aspects of an individual (see ***658 Civil Rights Law, ss 50, 51; Restatement, **773 2d, Torts, Tent. Draft No. 13 (April 27, 1967), s 625C).

            There is still further difficulty. In this State thus far there has been no recognition of a common law right of privacy, but only that which derives from a statute of rather limited scope (Civil Rights Law, ss 50, 51; Flores v. Mosler Safe Co., 7 N.Y.2d 276, 280, 196 N.Y.S.2d 975, 977, 164 N.E.2d 853, 854;  Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 556—557,  64 N.E. 442, 447—448, 59 L.R.A. 478). Consequently, this court must undertake the hazardous task of applying what is at present the quite different law of the District of Columbia. True, this may be the court's burden eventually, if the case were to return to it for review after trial, especially if the plaintiff were to prevail upon such a trial. However, there is no occasion to advance, now, into a complicated, subtle and still-changing field of law of another jurisdiction, solely to determine before trial the relevancy and allocability among pleaded causes of action or projected but not yet offered items of evidence. It is not overstatement to say that *574 in the District of Columbia the law of the right of privacy is still inchoate in its development, perhaps more so than in many other jurisdictions that accept this newly coined common-law cause of action, despite unequivocal acceptance as a doctrine and extension by dictum to cases of intrusion (Pearson v. Dodd, Supra, 410 F.2d, at p. 704).* In the absence of a trial record, the court should avoid any unnecessary extrapolation of what the District of Columbia Court of Appeals has characterized as ‘an untried and developing area of tort law’ (Pearson v. Dodd, Supra, p. 705).

            Nor does Rager v. McCloskey, 305 N.Y. 75, 111 N.E.2d 214 offer support for the excursion in this case into the allocation in advance of trial and an evidentiary record of the functional relevancy of evidence ***659 perhaps to be offered in the future and perhaps not. In the Rager case, plaintiff had urged throughout the proceedings an alternative, independent, and unsustainable legal theory based allegedly on the accordion doctrine of ‘prima facie’ tort (see Morrison v. National Broadcasting Co., 24 A.D.2d 284, 289—292, 266 N.Y.S.2d 406, 411—414, 16 A.L.R.3d 1175,revd. on narrow grounds, 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572). Quite appropriately, although perhaps not necessarily, the court in sustaining the complaint pointed out that the cause of action could not survive on the alternative theory in the absence of allegation and proof of special damages. This was accomplished by a simple reference to the theory of ‘prima facie’ tort and the patent vital omission of an allegation of special damages in the pleading.**774 Notably, and so relevant to the policy to be followed in this case, the court otherwise limited its analysis of the pleading. Having found that the Rager complaint stated a cause of action against each of the defendants, the court declined to consider whether allegations of additional false statements, and recitals *575 of conspiracy, were still relevant or admissible on any further cause of action. It stated: ‘Since, then, the complaint does state a cause of action against each of the defendants, it is immune from attack for insufficiency, even though it may contain additional allegations that are inadequate to charge any further cause of action. See Abrams v. Allen, 297 N.Y. 52, 54, 74 N.E.2d 305, 306, 173 A.L.R. 671; Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 84, 70 N.E.2d 401, 403; Abbey v. Wheeler, 170 N.Y. 122, 127, 62 N.E. 1074, 1076. Accordingly, we postpone for possible future consideration the question whether other allegedly false statements—attributed to one or another of defendants—may be ruled defamatory and slanderous per se, as well as the further question whether the recitals of conspiracy are sufficient to charge each of the defendants with liability for the acts of the others.’ (Rager v. McCloskey, Supra, 305 N.Y. at p. 80, 111 N.E.2d at p. 217.)

            The plaintiff, naturally enough, is trying to broaden his warrant, and defendant-appellant is correspondingly trying to narrow that warrant. But the eagerness of the parties in briefing hypothetical problems does not require an advisory opinion or a declaratory judgment by the highest court of the State without the benefit of a trial judge's rulings on relevancy, and an Appellate Division's review of those rulings on a trial record. There is no justification, on the present record, for giving an illiberal and restrictive scope to a cause of action based on the right of privacy as that right is likely to be defined under the applicable law of another jurisdiction.

            The broad statements in the opinion of the Appellate Division can be met, as this court has done so often, by declaring *576 that they are not necessarily ***660 adopted in concluding that a cause or causes of action have been stated.

            Accordingly, because of the prematurity of ruling on any other question but the sufficiency of the causes of action, I concur in result only.

SCILEPPI, BERGAN and GIBSON, JJ., concur with FULD, C.J.

BREITEL, J., concurs in result in an opinion in which BURKE and JASEN, JJ., concur.

Order affirmed, etc.

All Citations

25 N.Y.2d 560, 255 N.E.2d 765, 307 N.Y.S.2d 647

Footnotes

            1 The first cause of action contains allegations of several types of activity which took place, for the most part, in the District of Columbia, while the second charges the appellant with engaging in similar activity in New York. It appears that, at least to some extent, both counts are premised on the same conduct and should be treated as stating alternative rather than cumulative claims for damages. In any event, however, the substantive nature of the two counts is the same.

            2 ‘The activities complained of:’ wrote the Appellate Division majority, ‘the shadowing, the indiscriminate interviewing of third persons about features of his intimate life, the wiretapping and eavesdropping, the prying into his bank accounts, taxes, the alleged accosting by young women and the receipt of threatening phone calls, all are within the purview of these cases' (31 A.D.2d, at p. 394, 298 N.Y.S.2d, at p. 139).

            3 Indeed, although the question whether wiretapping affords a predicate for an invasion of privacy action has not yet arisen in our own jurisdiction, we note that our Penal Law—in an article entitled ‘Offenses Against the Right to Privacy’—makes eavesdropping by such means a felony (Penal Law, art. 250, s 250.05).

            * This is what the latest pronouncement from the Court of Appeals in the District of Columbia has to say about this ‘new’ tort, as applied to intrusion: ‘Unlike other types of invasion of privacy, intrusion does not involve as one of its essential elements the publication of the information obtained. The tort is completed with the obtaining of the information by improperly intrusive means.

            “Intrusion' has not been either recognized or rejected as a tort in the District of Columbia. It has been recognized by a number of state courts, most recently by the New Hampshire Supreme Court in Hamberger v. Eastman, 106 N.H. 107 (206 A.2d 239). Hamberger found liable a defendant who eavesdropped upon the marital bedroom of plaintiffs by electronic means, holding that ‘the invasion of the plaintiffs' solitude or seclusion * * * was a violation of their right of privacy.’

            'We approve the extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres from which an ordinary man in a plaintiff's position could reasonably expect that the particular defendant should be excluded. Just as the Fourth Amendment has expanded to protect citizens from government intrusions where intrusion is not reasonably expected, so should tort law protect citizens from other citizens. The protection should not turn exclusively on the question of whether the intrusion involves a technical trespass under the law of property. The common law, like the Fourth Amendment, should ‘protect people, not places.“ (footnotes omitted).

847*847 John D. Rowell, Glendale, Lewis, Goldberg & Ball, Michael L. Goldberg, Mc Lean, Va., Paul & Stuart, Stuart Law Firm, Antony Stuart, Los Angeles, and William A. Daniels, Santa Monica, for Plaintiffs and Appellants.

Cornell Chulay, Los Angeles, Epstein, Becker & Green, Janet Morgan, Terry M. Gordon, Richard A. Hoyer, San Francisco, Tharpe & Howell, Donald F. Austin, Ventura, Davis, Wright, Tremaine, Kelli L. Sager, Karen N. Fredericksen and Frederick F. Mumm, Los Angeles, for Defendants and Respondents.

James E. Grossberg, Washington DC, as Amicus Curiae on behalf of Defendants and Respondents.

Neville L. Johnson, Los Angeles, and David A. Elder as Amici Curiae.

WERDEGAR, Justice.

More than 100 years ago, Louis Brandeis and Samuel Warren complained that the press, armed with the then recent invention of "instantaneous photographs" and under the influence of new "business methods," was "overstepping in every direction the obvious bounds of propriety and of decency." (Warren & Brandeis, The Right to Privacy (1890) 4 Harv. L.Rev. 193, 195-196 (hereafter Brandeis).) Even more ominously, they noted the "numerous mechanical devices" that "threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops.'" (Id. at p. 195.) Today, of course, the newspapers of 1890 have been joined by the electronic media; today, a vast number of books, journals, television and radio stations, cable channels and Internet content sources all compete to satisfy our thirst for knowledge and our need for news of political, economic and cultural events — as well as our love of gossip, our curiosity about the private lives of others, and "that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors." (Id. at p. 196.) Moreover, the "devices" available for recording and transmitting what would otherwise be private have multiplied and improved in ways the 19th century could hardly imagine.

Over the same period, the United States has also seen a series of revolutions in mores and conventions that has moved, blurred and, at times, seemingly threatened to erase the line between public and private life. While even in their day Brandeis and Warren complained that "the details of sexual relations are spread broadcast in the columns of the daily papers" (Brandeis, supra, 4 Harv. L.Rev. at p. 196), today's public discourse is particularly notable for its detailed' and graphic discussion of intimate personal and family matters — sometimes as topics of legitimate public concern, sometimes as simple titillation. More generally, the dominance of the visual image in contemporary culture and the technology that makes it possible to capture and, in an instant, universally 848*848 disseminate a picture or sound allows us, and leads us to expect, to see and hear what our great-grandparents could have known only through written description.

The sense of an ever-increasing pressure on personal privacy notwithstanding, it has long been apparent that the desire for privacy must at many points give way before our right to know, and the news media's right to investigate and relate, facts about the events and individuals of our time. Brandeis and Warren were themselves aware that recognition of the right to privacy requires a line to be drawn between properly private events, words and actions and those of "public and general interest" with which the community has a "legitimate concern." (Brandeis, supra, 4 Harv. L.Rev. at p. 214.) As early as 1931, in the first California case recognizing invasion of privacy as a tort, the court observed that the right of privacy "does not exist in the dissemination of news and news events." (Melvin v. Reid (1931) 112 Cal.App. 285, 290, 297 P. 91.)

Also clear is that the freedom of the press, protected by the supreme law Of the First and Fourteenth Amendments to the United States Constitution, extends far beyond simple accounts of public proceedings and abstract commentary on well-known events. "The guarantees for speech and press are not the preserve of political expression or comment on public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press." (Time, Inc. v. Hill (1967) 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456.) Thus, "[t]he right to keep information private was bound to clash with the right to disseminate information to the public." (Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 534, 93 Cal. Rptr. 866, 483 P.2d 34.)

Despite, then, the intervening social and technological changes since 1890, the fundamental legal problems in defining a right of privacy vis-à-vis the news media have not changed — have, if anything, intensified. At what point does the publishing or broadcasting of otherwise private words, expressions and emotions cease to be protected by the press's constitutional and common law privilege — its right to report on matters of legitimate public interest — and become an unjustified, actionable invasion of the subject's private life? How can the courts fashion and administer meaningful rules for protecting privacy without unconstitutionally setting themselves up as censors or editors? Publication or broadcast aside, do reporters, in their effort to gather the news, have any special privilege to intrude, physically or with sophisticated photographic and recording equipment, into places and conversations that would otherwise be private? Questions of this nature have concerned courts and commentators at least since Brandeis and Warren wrote their seminal article, and continue to do so to this day.^[1]

In the present case, we address the balance between privacy and press freedom in the commonplace context of an automobile accident. Plaintiffs, two members of a family whose activities and position did not otherwise make them public figures, were injured when their car went off the highway, overturning and trapping them inside. A medical transport and rescue helicopter crew came to plaintiffs' assistance, accompanied on this occasion by a video camera operator employed by a television producer. The cameraman filmed plaintiffs' extrication from the car, the 849*849 flight nurse and medic's efforts to give them medical care during the extrication, and their transport to the hospital in the helicopter. The flight nurse wore a small microphone that picked up her conversations with other rescue workers and with one of the plaintiffs. This videotape and sound track were edited into a segment that was broadcast, months later, on a documentary television show, On Scene: Emergency Response. Plaintiffs, who consented neither to the filming and recording nor to the broadcast, allege the television producers thereby intruded into a realm of personal privacy and gave unwanted publicity to private events of their lives.

The trial court granted summary judgment for the producers on the ground that the events depicted in the broadcast were newsworthy and the producers' activities were therefore protected under the First Amendment to the United States Constitution. The Court of Appeal reversed, finding triable issues of fact exist as to one plaintiffs claim for publication of private facts and legal, error on the trial court's part as to both plaintiffs' intrusion claims. Agreeing with some, but not all, of the Court of Appeal's analysis, we conclude summary judgment was proper as to plaintiffs' cause of action for publication of private facts, but not as to their cause of action for intrusion.^[2]

Facts and Procedural History

On June 24, 1990, plaintiffs Ruth and Wayne Shulman, mother and son, were injured when the car in which they and two other family members were riding on interstate 10 in Riverside County flew off the highway and tumbled down an embankment into a drainage ditch on state-owned property, coming to rest upside down. Ruth, the most seriously injured of the two, was pinned under the car. Ruth and Wayne both had to be cut free from the vehicle by the device known as "the jaws of life."

A rescue helicopter operated by Mercy Air was dispatched to the scene. The flight nurse, who would perform the medical care at the scene and on the way to the hospital, was Laura Carnahan. Also on board were the pilot, a medic and Joel Cooke, a video camera operator employed by defendants Group W Productions, Inc., and 4MN Productions. Cooke was recording the rescue operation for later broadcast.

Cooke roamed the accident scene, videotaping the rescue. Nurse Carnahan wore a wireless microphone that picked; up her conversations with both Ruth and the other rescue personnel. Cooke's tape was edited into a piece approximately nine minutes long, which, with the addition of narrative voiceover, was broadcast on September 29, 1990, as a segment of On Scene: Emergency Response.

The segment begins with the Mercy Air helicopter shown on its way to the accident site. The narrator's voice is heard in the background, setting the scene and describing in general terms what has happened. The pilot can be heard speaking with rescue workers on the ground in order to prepare for his landing. As the helicopter touches down, the narrator says: "[F]our of the patients are leaving by ground ambulance. Two are still trapped inside." (The first part of this statement was wrong, since only four persons were in the car to start.) After Carnahan steps from the helicopter, she can be seen and heard speaking about the situation with various rescue workers. A firefighter assures her they will hose down the area to prevent any fire from the wrecked car.

The videotape shows only a glimpse of Wayne, and his voice is never heard. Ruth is shown several times, either by brief shots of a limb or her torso, or with her features blocked by others or obscured by an oxygen mask. She is also heard speaking several 850*850 times. Carnahan calls her "Ruth," and her last name is not mentioned on the broadcast.

While Ruth is still trapped under the car, Carnahan asks Ruth's age. Ruth responds, "I'm old." On further questioning, Ruth reveals she is 47, and Carnahan observes that "it's all relative. You're not that old." During her extrication from the car, Ruth asks at least twice if she is dreaming. At one point she asks Carnahan, who has told her she will be taken to the hospital in a helicopter: "Are you teasing?" At another point she says: "This is terrible. Am I dreaming?" She also asks what happened and where the rest of her family is, repeating the questions even after being told she was in an accident and the other family members are being cared for. While being loaded into the helicopter on a stretcher, Ruth says: "I just want to die." Carnahan reassures her that she is "going to do real well," but Ruth repeats: "I just want to die. I don't want to go through this."

Ruth and Wayne are placed in the helicopter, and its door is closed. The narrator states: "Once airborne, Laura and [the flight medic] will update their patients' vital signs and establish communications with the waiting trauma teams at Loma Linda." Carnahan, speaking into what appears to be a radio microphone, transmits some of Ruth's vital signs and states that Ruth cannot move her feet and has no sensation. The video footage during the helicopter ride includes a few seconds of Ruth's face, covered by an oxygen mask. Wayne is neither shown nor heard.

The helicopter lands on the hospital roof. With the door open, Ruth states while being taken out: "My upper back hurts." Carnahan replies: "Your upper back hurts. That's what you were saying up there." Ruth states: "I don't feel that great." Carnahan responds: "You probably don't."

Finally, Ruth is shown being moved from the helicopter into the hospital. The narrator concludes by stating: "Once inside both patients will be further evaluated and moved into emergency surgery if need be. Thanks to the efforts of the crew of Mercy Air, the firefighters, medics and police who responded, patients' lives were saved." As the segment ends, a brief, written epilogue appears on the screen, stating: "Laura's patient spent months in the hospital. She suffered severe back injuries. The others were all released much sooner."

The accident left Ruth a paraplegic. When the segment was broadcast, Wayne phoned Ruth in her hospital room and told her to turn on the television because "Channel 4 is showing our accident now." Shortly afterward, several hospital workers came into the room to mention that a videotaped segment of her accident was being shown. Ruth was "shocked, so to speak, that this would be run and I would be exploited, have my privacy invaded, which is what I felt had happened." She did not know her rescue had been recorded in this manner and had never consented to the recording or broadcast. Ruth had the impression from the broadcast "that I was kind of talking nonstop, and I remember hearing some of the things I said, which were not very pleasant." Asked at deposition what part of the broadcast material she considered private, Ruth explained: "I think the whole scene was pretty private. It was pretty gruesome, the parts that I saw, my knee sticking out of the car. I certainly did not look my best, and I don't feel it's for the public to see. I was not at my best in what I was thinking and what I was saying and what was being shown, and it's not for the public to see this trauma that I was going through."

Ruth and Wayne sued the producers of On Scene: Emergency Response, as well as others.^[3] The first amended complaint included two causes of action for invasion of privacy, one based on defendants' unlawful intrusion by videotaping the rescue in the first instance and the other based on the public disclosure of private facts, i.e., the broadcast.

Defendants moved for summary judgment, contending primarily that their conduct was protected by the First Amendment because of the broadcast's newsworthy content. In 851*851 their response to the summary judgment motion, plaintiffs conceded, as undisputed facts, that an account of their accident and rescue appeared in a San Bernardino area newspaper shortly after the rescue and before the broadcast; that Mercy Air was dispatched to the scene by Riverside County officials and rendered service pursuant to Mercy Air's license and agreement with the county; and that auto accidents on public highways and publicly provided emergency rescue and medical services were both matters of public interest that constituted public affairs.

The trial court granted the media defendants' summary judgment motion, basing its ruling on plaintiffs' admissions that the accident and rescue were matters of public interest and public affairs. Those admissions, in the trial court's view, showed as a matter of law that the broadcast material was newsworthy, thereby vesting the media defendants' conduct with First Amendment protection. The court entered judgment for defendants on all causes of action.

The Court of Appeal reversed and remanded for further proceedings, but on limited grounds and as to some causes of action only. First, the Court of Appeal held plaintiffs had no reasonable expectation of privacy in the events at the accident scene itself. According to the lower court, "Appellants' accident occurred on a heavily traveled public highway.... The videotape itself shows a crowd of onlookers peering down at the rescue scene below. Appellants could be seen and heard by anyone at the accident site itself and could not have had a reasonable expectation of privacy at the scene in regard to what they did or said. Their statements or exclamations could be freely heard by all who passed by and were thus public, not private." Once inside the helicopter, however, the court next reasoned, plaintiffs did have a reasonable expectation of privacy; the helicopter was essentially an airborne ambulance, and an ambulance in emergency medical use is considered a private space, both by social tradition and by analogy to a hospital room, which was deemed private in Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654,109 Cal.Rptr. 269.

As to Ruth's cause of action for publication of private facts (limited to the broadcast of events inside the helicopter), the Court of Appeal concluded tribal issues of fact existed on the element of offensiveness and on a defense of news worthiness. With regard to plaintiffs' claims of intrusion, also as related to the recording of events in the helicopter, the Court of Appeal, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, held the trial court erred in applying a complete defense of news worthiness; instead, the trial court should have conducted an analysis balancing plaintiffs' privacy rights against defendants' First Amendment interest in recording the rescue. The Court of Appeal therefore remanded for further proceedings as to both plaintiffs' cause of action for intrusion and as to Ruth's cause of action for publication of private facts.

We conclude the Court of Appeal's judgment should be affirmed except insofar as it remanded for further proceedings on Ruth's private facts claim. With regard to that claim, we hold that the material broadcast was newsworthy as a matter of law and, therefore, cannot be the basis for tort liability under a private facts claim. Summary judgment thus was proper as to both plaintiffs on the private facts cause of action.

As to intrusion, the Court of Appeal correctly found tribal issues exist as to whether defendants invaded plaintiffs' privacy by accompanying plaintiffs in the helicopter. Contrary to the holding below, we also hold tribal issues exist as to whether defendants tortuously intruded by listening to Ruth's confidential conversations with Nurse Carnahan at the rescue scene without Ruth's consent. Moreover, we hold defendants had no constitutional privilege so to intrude on plaintiffs' seclusion and private communications.

DISCUSSION

Influenced by Dean Prosser"s analysis of the tort actions for invasion of privacy (Prosser, Privacy (1960) 48 Cal.L.Rev. 381). and the exposition of a similar analysis in the Restatement Second of Torts sections 652652E (further references to the Restatement are to the Restatement Second of Torts), 852*852 California courts have recognized both of the privacy causes of action pleaded by plaintiffs here: (1) public disclosure of private facts, and (2) intrusion into private places, conversations or other matters. (See Forsher v. Bugliosi (1980) 26 Cal.3d 792, 808, 163 Cal. Rptr. 628, 608 P.2d 716; Kapellas v. Kofman (1969) 1 Cal.3d 20, 35-36, 81 Cal.Rptr. 360, 459 P.2d 912; Miler v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463,1482, 232 Cal.Rptr. 668; Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126,188 Cal.Rptr. 762 (Diaz).)^[4] We shall review the elements of each privacy tort, as well as the common law and constitutional privilege of the press as to each, and shall apply in succession this law to the facts pertinent to each cause of action.

I. Publication of Private Facts

The claim that a publication has given unwanted publicity to allegedly private aspects of a person's life is one of the more commonly litigated and well-defined areas of privacy law. In Diaz, supra, 139 Cal.App.3d at page 126, 188 Cal.Rptr. 762, the appellate court accurately discerned the following elements of the public disclosure tort: "(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern." (See Forsher v. Bugliosi supra, 26 Cal.3d at pp. 808-809,163 Cal.Rptr. 628, 608 P.2d 716; GUI v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 228-231, 253 P.2d 441; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 744-748, 20 Cal.Rptr. 405.) That formulation does not differ significantly from the Restatement's, which provides that "[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that [¶] (a) would be highly offensive to a reasonable person, and [¶] (b) is not of legitimate concern to the public." (Rest.2d Torts, § 652D.)

The element critical to this case is the presence or absence of legitimate public interest, i.e., news worthiness, in the facts disclosed. After reviewing the decisional law regarding news worthiness, we conclude, inter alias, that lack of news worthiness is an element of the "private facts" tort, making news worthiness a complete bar to common law liability. We further conclude that the analysis of news worthiness inevitably involves accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution, and that in the circumstances of this case — where the facts disclosed about a private person involuntarily caught up in events of public interest bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance — the broadcast was of legitimate public concern, barring liability under the private facts tort.

The Diaz formulation, like the Restatements, includes as a tort element that the matter published is not of legitimate public concern. Diaz thus expressly makes the lack of news worthiness part of the plaintiffs case in a private facts action. (See also Diaz, supra, 139 Cal.App.3d at pp. 128-130, 188 Cal.Rptr: 762 [plaintiff bears burden of proving published matter was not newsworthy].) Our own decisions are consistent, if less explicit, on this point. (See Forsher v. Bugliosi supra, 26 Cal.3d at p. 809, 163 Cal. Rptr. 628, 608 P.2d 716 [The defendant's First Amendment right to disseminate information to the public must be considered "[i]n determining whether a cause of action [for publication of private facts] has been stated...."]; Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 278, 239 P.2d 630 [Public interest in the dissemination of news and information must be balanced against the privacy right "in defining the boundaries of the right."].) The Diaz approach is consistent with the tort's historical development, in which defining an actionable invasion of privacy has generally been understood to require balancing privacy interests against the press's right to report, and the community's interest in receiving, news and information. 853*853 (See Brandeis, supra, 4 Harv. L.Rev. at p. 214; Melvin v. Reid, supra, 112 Cal.App. at p. 290, 297 P. 91; Sidis v. F-R Publishing Corp. (2d Cir.1940) 113 F.2d 806, 809; Barber v. Time, Inc. (1942) 348 Mo. 1199, 1206, 159 S.W.2d 291; Carlisle v. Fawcett Publications, Inc., supra, 201 Cal.App.2d at p. 745, 20 Cal.Rptr. 405; GUI v. Curtis Publishing Co., supra, 38 Cal.2d at p. 277, 239 P.2d 630; Briscoe v. Reader's Digest Association, Inc., supra, 4 Cal.3d at p. 534, 93 Cal.Rptr. 866, 483 P.2d 34.)

We therefore agree with defendants that under California common law the dissemination of truthful, newsworthy material is hot actionable as a publication of private facts. (Kapellas v. Kofman, supra, 1 Cal.3d at pp. 35-36, 81 Cal.Rptr. 360, 459 P.2d 912; Diaz, supra, 139 Cal.App.3d at p. 126,188 Cal.Rptr. 762; Rest.2d Torts, § 652D.) If the contents of a broadcast or publication are of legitimate public concern, the plaintiff cannot establish a necessary element of the tort action, the lack of news worthiness. To so state, however, is merely to begin the necessary legal inquiry, not to end it. It is in the determination of news worthiness — in deciding whether published or broadcast material is of legitimate public concern — that courts must struggle most directly to accommodate the conflicting interests of individual privacy and press freedom.

Although we speak of the lack of news worthiness as an element of the private facts tort, news worthiness is at the same time a constitutional defense to, or privilege against, liability for publication of truthful information. (Forsher v. Bugliosi, supra, 26 Cal.3d at p. 809, 163 Cal.Rptr. 628, 608 P.2d 716; Gilbert v. Medical Economics Company (10th Cir.1981) 665 F.2d 305, 307-308; Vassiliades v. Garfinckel's Brooks Bros. (D.C. 1985) 492 A.2d 580, 589.) Indeed, the danger of interference with constitutionally protected press freedom has been and remains an ever-present consideration for courts and commentators struggling to set the tort's parameters, and the requirements of tort law and the Constitution have generally been assumed to be congruent. (See Rest.2d Torts, § 652D, com. d, p. 388 [news worthiness standard developed in common law but now expresses constitutional limit as well]; Virgil v. Time, Inc. (9th Cir.1975) 527 F.2d 1122, 1128-1130 [accepting Restatement test of news worthiness as constitutional standard]; Ross v. Midwest Communications, Inc. (5th Cir.1989) 870 F.2d 271, 273 [Stating of Texas law, which follows the Restatement, that "[i]n the `news worthiness' line of argument... the state law and constitutional tests are the same."].) Little is to be gained, therefore, in attempting to keep rigorously separate the tort and constitutional issues as regards news worthiness, and we have not attempted to do so here. Tort inability, obviously, can extend no further than the First Amendment allows; conversely, we see no reason or authority for fashioning the news worthiness element of the private facts tort to preclude liability where the Constitution would allow it.

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, 95 S.Ct. 1029, 43 L.Ed.2d 328 (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 tortuous publication of private facts. (Id. at pp. 471-74, 95 S.Ct. at pp. 1034-1036.) 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 stations First Amendment 854*854 rights. (Id. at p. 475, 95 S.Ct. at p. 1036.)

The federal high court reversed, but — recognizing the important interests on both sides of the news worthiness 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, 95 S.Ct. at p. 1044.) For this holding the court relied on the "responsibility of the press to report the operations of government" (id. at p. 492, 95 S.Ct. at p. 1044), 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, 95 S.Ct. at p. 1046).

A more recent case cited by defendants, The Florida Star v. B.J.F. (1989) 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (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 plaintiffs civil action was not plead 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, 109 S.Ct, at 2612.) 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, 109 S.Ct. at p. 2609.) 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 "relating on the governments implied representations of the lawfulness of dissemination." (Florida Star, supra, 491 U.S. at p. 536, 109 S.Ct. at p. 2610.)

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 855*855 public records, is generally within the scope of constitutional protection. The decisions do not, however, enunciate a general test of news worthiness 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 News worthiness? (1978) 64 Iowa L.Rev. 185,199-202.)

News worthiness — constitutional or common law — is also difficult to define because it may be used as either a descriptive or a formative 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 News worthiness (1963) 30 U. Chi. L.Rev. 722, 725.) A position at either extreme has unpalatable consequences. If "news worthiness" 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 news worthiness is viewed as a purely formative 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 formative 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 news worthiness concept. As one commentator has noted, the news worthiness 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, 297 P. 91, the defendants, using the plaintiffs true maiden name, had produced and exhibited a motion picture based on events of the plaintiffs life, including her having been a prostitute many years earlier. (Id. at pp. 286-287, 297 P. 91.) The appellate court held the use of the plaintiffs 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, 297 P. 91.) In short, such use was "not justified by any standard of morals or ethics known to us." (Id. at p. 292, 297 P. 91.)

This court took a similar, albeit less overtly moralistic, approach in GUI v. Curtis Publishing Co., supra, 38 Cal.2d 273, 239 P.2d 630 (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, 239 P.2d 630.) As the Court of Appeal had done in Melvin v. Reid, supra, 112 Cal. App. 285, 297 P. 91, we attempted to distinguish a disclosure of private facts that was closely connected to the news worthiness 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, 239 P.2d 630.) Although we therefore did not need to decide on a general standard of news worthiness, we noted that "[f]lactors 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, 239 P.2d 630.)

A year later, without explicitly overruling Gill v. Curtis, we reached a seemingly inconsistent conclusion in another case involving 856*856 the same publication. (Gill v. Hearst Publishing Co., supra, 40 Cal.2d 224, 253 P.2d 441 (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, 253 P.2d 441.)^[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, 253 P.2d 441 (cone. & dis. opn. of Carter, J.).)

This court next addressed the question in Kapellas v. Kofinan, supra, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (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 peccadillos 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, melding 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, 81 Cal.Rptr. 360, 459 P.2d 912.) 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, 81 Cal.Rptr. 360, 459 P.2d 912, fn. Omitted.) Following the articulated principle, we held the information disclosed, if true, was absolutely privileged. (Id. at p. 39, 81 Cal.Rptr. 360, 459 P.2d 912.)

We employed the Kapellas factors in Briscoe v. Reader's Digest Association, Inc., supra, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (Briscoe). A magazine article on truck hijacking included a description of such a crime the plaintiff had committed 11 years earlier, using the plaintiffs true name. Conceding that "reports of the facts of past crimes are newsworthy" (id. at p. 537, 93 Cal.Rptr. 866, 483 P.2d 34), we nonetheless concluded a jury could reasonably find the plaintiffs identity as a former hijacker to be non newsworthy. The identification of a rehabilitated person as a former criminal was, under the circumstances, of "minimal social value" (id. at p. 541, 93 Cal.Rptr. 866, 483 857*857 P.2d 34), would tend to interfere with the state's interest in rehabilitating criminals returning them to society, and could be regarded as a serious intrusion on private matters (id. at p. 542, 93 Cal.Rptr. 866, 483 P.2d 34).^[6]

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 — private and public, newsworthy and non newsworthy — 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 nights. [Citation.] We therefore stave 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, 93 Cal.Rptr. 866, 483 P.2d 34.) We believed, however, 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 ability 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 plaintiffs identity. (Id. at p. 543, 93 Cal.Rptr. 866, 483 P.2d 34.)

In the most recent of this court's decisions on publication of private facts, we applied the same general analysis of news worthiness ad in Briscoe but distinguished that case on its facts. (Forsher v. Bugliosi, supra, 26 Cal.3d at pp. 809-813, 163 Cal.Rptr. 628, 608 P.2d 716 (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, 163 Cal.Rptr. 628, 608 P.2d 716.)

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, that they articulate the competing interests to be balanced. First, the analysis of news worthiness does involve courts to some degree in a formative assessment of the "social value" of a publication. (Kapellas, supra, 1 Cal.3d at. 36, 81 Cal.Rptr. 360, 459 P.2d 912.) All material that might attract readers or viewers is not, simply by 858*858 virtue of its attractiveness, of legitimate public interest. Second, the evaluation of news worthiness 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.)^[7]

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 matters 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 plaintiffs 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, 93 Cal.Rptr. 866, 483 P.2d 34 [identification of plaintiff as former criminal]; Gill v. Curtis, supra, 38 Cal.2d at p. 279, 239 P.2d 630 [use of plaintiffs' photograph to illustrate article on love]; Melvin v. Reid,, supra, 112 Cal.App. at pp. 291-292, 297 P. 91 [identification of plaintiff as former prostitute]; Barber v. Time, Inc., supra, 348 Mo. at pp. 1207-1208, 159 S.W.2d 291 [use of plaintiffs 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 plaintiffs 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, 188 Cal.Rptr. 762.) Similarly, a mother's private words over the body of her slain son as it lay in a hospital room were held non newsworthy despite undisputed legitimate public interest in the subjects of gang violence and murder. (Green v. Chicago Tribune Co. (1996) 286 Ill.App.3d 1, 221 Ill.Dec. 342, 675 N.E.2d 249, 255-256.)

Consistent with the above, courts have generally protected the privacy of otherwise private individual involved in events of 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 news worthiness with regard to such individuals by assessing the logical relationship or nexus, or 859*859 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. 15 F.3d 1338,1346 ["substantially relation Ross v. Midwest Communications, Inc., supra, 870 F.2d at p. 274 [5th Cir.: "logical nexus"]; Campbell v. Seabury Press, 614 F.2d at p. 397 [5th Cir.: "logical nexus"]; Gilbert, supra, 665 F.2d at p. 308 Cir.: "substantial relevance"]; Lee v. Calhoun (10th Cir.1991) 948 F.2d 1162, 1165-1166 [following Gilbert]; Haynes v. Alfred A. Knob, 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 our own prior decisions, in that it balances the public's right to know against the plaintiffs 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, 81 Cal.Rptr. 360, 459 P.2d 912 [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 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, 201 Cal.Rptr. 665; 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 Knob, Inc., supra, 8 F.3d at p. 1232 [private not newsworthy "when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger"].)

An analysis measuring news-worthiness of facts about an otherwise private person involuntarily involved in an event of public interest by their relevance to a newsworthy subject matter incorporates consupra, deference to reporters and editors, avoiding the likelihood of unconstitutional in[10th interference with the freedom of the press to report truthfully on matters of legitimate public interest.^[8] In general, it is not for a court or jury to say how a particular story is best covered. The constitutional privilege to publish truthful material "ceases to operate only when an editor abuses his broad discretion to publish matters that are of legitimate public interest." (Gilbert, supra, 665 F.2d at p. 308.) By confining our interference to extreme cases, the courts "avoid] unduly limiting ... the exercise of effective editorial judgment." (Virgil v. Time, Inc., supra, 527 F.2d at p. 1129.) Nor is news worthiness governed by the tastes or limited interests of an individual judge or juror; a publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Our analysis thus does not purport to distinguish among the various gitimate purposes that may be served by truthful publications and broadcasts. As we said in Gill v. Hearst, supra, 40 Cal.2d at page 229, 253 P.2d 441, "the constitutional guarantees of freedom of expression apply with equal force to the publication whether it be a news report or an entertainment feature...." Thus, news worthiness is not limited to "news" in the narrow sense of reports current events. "It extends also to the 860*860 use of names, likenesses or facts in giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published." (Rest.2d Torts, § 652D, com. j, p. 393; accord, Gilbert, supra, 665 F.2d at p. 308; Virgil v. Time, Inc., supra, 527 F.2d at p. 1129; see also Carlisle v. Faucet Publications, Inc., supra, 201 Cal.App.2d at p. 746, 20 Cal.Rptr. 405 [matters of legitimate public interest include, for example, "the reproduction of past events, travelogues and biographies"]; Vassiliades v. Garfinkel's Brooks Bros., supra, 492 A.2d at p. 589 [includes "`information concerning interesting phases of human activity"].)

Finally, an analysis focusing on relevance allows courts and juries to decide most cases involving persons involuntarily involved in events of public interest without "balanc[ing] interests in ad hoc fashion in each case" (Briscoe, supra, 4 Cal.3d at p. 542, fn. 18, 93 Cal.Rptr. 866, 483 P.2d 34). The articulation of standards that do not require "ad hoc resolution of the competing interest in each ... case" (Gertz v. Welch (1974) 418 U.S. 323, 343, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789) is favored in areas affecting First Amendment rights, because the relative predictability of results reached under such standards minimizes the inadvertent chilling of protected speech, and because standards that can be applied objectively provide a stronger shield against the unconstitutional punishment of unpopular speech. (Ibid.; Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy' (1968) 56 Call rev. 935, 938-945 (hereafter Nimmer); see also Reno v. American Civil Liberties Union (1997) ___ U.S. ___, ___, ___ ___, 117; S.Ct. 2329, 2341, 2344-2345, 138 L.Ed.2d 874 [internet speech prohibitions employing undefined term "indecent" and appealing to "community standards" of what is "patently offensive" are, absent further narrowing of prohibitions, unconstitutionally vague and uncertain].)

On the other hand, no mode of analyzing news worthiness can be applied mechanically or without consideration of its proper boundaries. To observe that the news worthiness of private facts about a person involuntarily thrust into the public eye depends, in the ordinary case, on the existence of a logical nexus between the newsworthy event or activity and the facts revealed is not to deny that the balance of free press and privacy interests may require a different conclusion when the intrusiveness of the revelation is greatly disproportionate to its relevance. Intensely personal or intimate revelations might not, in a given case, be considered newsworthy, especially where they bear only slight relevance to a topic of legitimate public concern. (See Kapellas, supra, 1 Cal.3d at pp. 37-38, 81 Cal.Rptr. 360, 459 P.2d 912 [Public interest in free flow of information will outweigh interest in individual privacy "[i]f 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...."]; Haynes v. Alfred A. Knob, Inc., supra, 8 F.3d at pp. 1234-1235 [although personal facts revealed in book at issue were newsworthy because germane to the book's subject matter, that protection may not extend to publication of "intimate physical details the publicizing of which would be not merely embarrassing and painful but deeply shocking to the average person"].)^[9]

861*861 A few words are in order at this point regarding the right of privacy secured by article I, section 1 of the California Constitution. The Court of Appeal, citing Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pages 37-38, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill), equated the judicial balancing undertaken in delineation of the common law right of privacy to the balancing of interests this court has prescribed for evaluating claims raised under our state's constitutional right of privacy. Defendants attack the Court of Appeal's adoption of Hill's balancing test in the common law tort context, arguing that under the federal Constitution news worthiness is a complete bar to liability, rather than merely an interest to be balanced against private or state-protected interests.

We agree with defendants that the publication of truthful, lawfully obtained material of legitimate public concern is constitutionally privileged and does not create liability under the private facts tort. As discussed above, however, a certain amount of interest balancing does occur in deciding whether material is of legitimate public concern, or in formulating rules for that decision. To that extent, the Court of Appeal's analogy to Hill was not in error.

In Hill, we held, inter alias, that article I, section 1 of the California Constitution protects Californians against invasions of privacy by non governmental as well as governmental parties. (Hill, supra, 7 Cal.4th at pp. 15-20, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Decisions concerning the tort actions for invasion of privacy have, in addition, sometimes linked the plaintiffs' protected interest to that constitutional provision. (See, e.g., Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at pp. 1490-1491, 232 Cal. Rptr. 668 [intrusion plaintiffs interest protected by constitutional privacy provision]; Melvin v. Reid, supra, 112 Cal.App. at p. 291, 297 P. 91 [in private facts case predating addition of "privacy" to article I, section 1, plaintiff deemed protected by that section's guarantee of right to pursue and obtain happiness].) The Hill court itself sought to "draw upon the one hundred years of legal experience surrounding the term `privacy'" in formulating the correct analysis of claims brought under the state Constitution. (Hill, supra, 7 Cal.4th at p. 27, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Thus, these two sources of protection for privacy — the common law and the state Constitution — are not unrelated. Nothing in Hill or our more recent constitutional privacy cases (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 66 Cal.Rptr.2d 210, 940 P.2d 797; Loder v. City of Glendale (1997) 14 Cal.4th 846, 59 Cal.Rptr.2d 696, 927 P.2d 1200), however, suggests that the conceptual framework developed for resolving privacy claims under the California Constitution was intended to supplant the common law tort analysis or Preclude its independent development. Nor did we have occasion in those cases to address the analytical means by which a state-created privacy right, whether of constitutional or common law origin, may be accommodated to conflicting and superior demands of federal constitutional interests, as for example those protected by the First Amendment. Turning now to the case at bar, we consider whether the possibly private facts complained of here — broadly speaking, Ruth's appearance and words during the rescue and evacuation — were of legitimate public interest. If so, summary judgment was properly entered. "[B]ecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citation.] Therefore, summary judgment is a favored remedy [in such cases]...." (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685,150 Cal.Rptr. 258, 586 P.2d 572; see also Haynes v. Alfred A. Knob Inc., supra, 8 F.3d at p. 1234 [Affirming summary judgment for defendants in private facts case: "To any suggestion that the outer bounds of ability should be left to a jury to decide we reply that in cases involving the rights protected by the speech and press clauses of the First Amendment the courts insist on judicial control of the jury."].) Nonetheless, the basic question raised on a defense motion for summary judgment, and on review of such judgment, 862*862 is the same in a privacy action against media defendants as in other cases: does the motion record demonstrate the existence of tribal issues of fact, or was the defense entitled to judgment as a matter of law. (Code Civ. Proc, § 437c, subd. (c); Sipple v. Chronicle Publishing Co., supra, 154 Cal.App.3d at p. 1046, 201 Cal.Rptr. 665.)

We agree at the outset with defendants that the subject matter of the broadcast as a whole was of legitimate public concern. Automobile accidents are by their nature of interest to that great portion of the public that travels frequently by automobile. The rescue and medical treatment of accident victims is also of legitimate concern to much of the public, involving as it does a critical service that any member of the public may someday need. The story of Ruth's difficult extrication from the crushed car, the medical attention given her at the scene, and her evacuation by helicopter was of particular interest because it highlighted some of the challenges facing emergency workers dealing with serious accidents. The more difficult question is whether Ruth's appearance and words as she was extricated from the overturned car, placed in the helicopter and transported to the hospital were of legitimate public concern. Pursuant to the analysis outlined earlier, we conclude the disputed material was newsworthy as a matter of law. One of the dramatic and interesting aspects of the story as a whole is its focus on flight nurse Carnahan, who appears to be in charge of communications with other emergency workers, the hospital base and Ruth, and who leads the medical assistance to Ruth at the scene. Her work is portrayed as demanding and important and as involving a measure of personal risk (e.g., in crawling under the car to aid Ruth despite warnings that gasoline may be dripping from the car).^[10] The broadcast segment makes apparent that this type of emergency care requires not only medical knowledge, concentration and courage, but an ability to talk and listen to severely traumatized patients. One of the challenges Carnahan faces in assisting Ruth is the confusion, pain and fear that Ruth understandably feels in the aftermath of the accident. For that reason the broadcast video depicting Ruth's injured physical state (which was not luridly shown) and audio showing her disorientation and despair were substantially relevant to the segment's newsworthy subject matter.

Plaintiffs argue that showing Ruth's "intimate private, medical facts and her suffering was not necessary to enable the public to understand the significance of the accident or the rescue as a public event." The standard, however, is not necessity. That the broadcast could have been edited to exclude some of Ruth's words and images and still excite a minimum degree of viewer interest is not deteriorative. Nor is the possibility that the members of this or another court, or a jury, might find a differently edited broadcast more to their taste or even more interesting. The courts do not, and constitutionally could not, sit as superior editors of the press. (Ross v. Midwest Communications, Inc., supra, 870 F.2d at p. 275 ["Exuberant judicial blue-penciling after-the-fact would blunt the quills of even the most honorable journalists."]; Gilbert, supra, 665 F.2d at p. 308 [Liability for disclosure of private facts is limited "to the extreme case, thereby providing the breathing space needed by the press to properly exercise effective editorial judgment."].)

The challenged material was thus substantially relevant to the newsworthy subject matter of the broadcast and did not constitute a "morbid and sensational prying into private lives for its own sake." (Rest.2d Torts, § 652D, com. h, p. 391, italics added.) Nor can we say the broadcast material was so lurid and sensational in emotional tone, or so intensely personal in content, as to make its intrusiveness disproportionate to its relevance. Under these circumstances, the material was, as a matter of law, of legitimate public concern. Summary judgment was therefore properly entered against Ruth on her cause of action for publication of private 863*863 facts.^[11] As to Wayne, he is glimpsed only fleetingly in the broadcast video and is never heard. The broadcast includes no images or information regarding him that could be offensive to a reasonable person of ordinary sensibilities. Summary judgment was therefore also proper on Wayne's cause of action for publication of private facts.

One might argue that, while the contents of the broadcast were of legitimate interest in that they reflected on the nature and quality of emergency rescue services, the images and sounds that potentially allowed identification of Ruth as the accident victim were irrelevant and of no legitimate public interest in a broadcast that aired some months after the accident and had little or no value as "hot" news. (See Briscoe, supra, 4 Cal.3d at p. 537, 93 Cal.Rptr. 866, 483 P.2d 34 [while reports of the facts of "long past" crimes are newsworthy, identification of the actor in such crimes "usually serves little independent public purpose"].) We do not take that view. It is difficult to see how the subject broadcast could have been edited to avoid completely any possible identification without severely undercutting its legitimate descriptive and narrative impact. As broadcast, the segment included neither Ruth's full name nor direct display of her face. She was nonetheless arguably identifiable by her first name (used in recorded dialogue), her voice, her general appearance and the recounted circumstances of the accident (which, as noted, had previously been published, with Ruth's full name and city of residence, in a newspaper).^[12] In a video documentary of this type, however, the use of that degree of truthful detail would seem not only relevant, but essential to the narrative.

II. Intrusion

Of the four privacy torts identified by Prosser, the tort of intrusion into private places, conversations or matter is perhaps the one that best captures the common understanding of an "invasion of privacy." It encompasses unconsented to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying. (See Rest.2d Torts, § 652B, com. b., pp. 378-379, and illustrations.) It is in the intrusion cases that invasion of privacy is most clearly seen as an affront to individual dignity. "[A] measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A man whose home may be entered at the will of another, whose conversations may be overheard at the will of another, whose marital and familial intimacies may be overseen at the will of another, is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant." (Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser (1964) 39 N.Y.U. L.Rev. 962, 973-974, fn. Omitted.)

Despite its conceptual centrality, the intrusion tort has received less judicial attention than the private facts tort, and its parameters are less clearly defined. The leading California decision is Miller v. National Broadcasting Co., supra, 187 Cal. App.3d 1463, 232 Cal.Rptr. 668 (Miller). Miller, which like the present case involved 864*864 a news organization's videotaping the work of emergency medical personnel, adopted the Restatements formulation of the cause of action: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." (Rest.2d Torts, § 652B; Miller, supra, 187 Cal.App.3d at p. 1482, 232 Cal. Rptr. 668.)

As stated in Miller and the Restatement, therefore, the action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. We consider the elements in that order.

We ask first whether defendants "intentionally intrude[d], physically or otherwise, upon the solitude or seclusion of another," that is, into a place or conversation private to Wayne or Ruth. (Rest.2d Torts, § 652B; Miller, supra, 187 Cal.App.3d at p. 1482, 232 Cal.Rptr. 668.) "[T]here is no liability for the examination of a public record concerning the plaintiff.... [Or] for observing him or even taking his photograph while he is walking on the public highway...." (Rest.2d Torts, § 652B, com. c, pp. 379-380; see, e.g., Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 162-163, 269 Cal.Rptr. 379 [where judge who was subject of news story was filmed from Public street as he walked from his home to his car, any invasion of privacy was "extremely de minimis"]; see also 1 McCarthy, The Rights of Publicity and Privacy (1997) § 5.10[A][2], pp. 5-111 to 5-113 [collecting cases].) To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. (Rest.2d, § 652B, com. c, p. 379; see, e.g., People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd. (1995) 111 Nev. 615, 895 P.2d 1269, 1280-1281 [plaintiff animal trainer had no expectation of seclusion or solitude in backstage preparation area]; Frankel v. Warwick Hotel (E.D.Pa.1995) 881 F.Supp. 183, 188 [father's meddling in son's marriage not intrusion where there was no "physical or sensory penetration of a person's zone of seclusion"].)

Cameraman Cooke's mere presence at the accident scene and filming of the events occurring there cannot be deemed either a physical or sensory intrusion on plaintiffs' seclusion. Plaintiffs had no right of ownership or possession of the property where the rescue took place, nor any actual control of the premises. Nor could they have had a reasonable expectation that members of the media would be excluded or prevented from photographing the scene; for journalists to attend and record the scenes of accidents and rescues is in no way unusual or unexpected. (Cf. Pen.Code, §§ 409,5, subd. (d), 409.6, subd. (d) [exempting press representatives from certain emergency closure orders].)

Two aspects of defendants' conduct, however, raise triable issues of intrusion on seclusion. First, a tribal issue exists as to whether both plaintiffs had an objectively reasonable expectation of privacy in the interior of the rescue helicopter, which served as an ambulance. Although the attendance of reporters and photographers at the scene of an accident is to be expected, we are aware of no law or custom permitting the press to ride in ambulances or enter hospital rooms during treatment without the patient's consent. (See Noble v. Sears, Roebuck & Co., supra, 33 Cal.App.3d at p. 660, 109 Cal.Rptr. 269 [accepting, subject to proof at trial, intrusion plaintiff's theory she had "an exclusive right of occupancy of her hospital room" as against investigator]; Miller, supra, 187 Cal. App.3d at pp. 1489-1490, 232 Cal.Rptr. 668 [Rejecting intrusion defendant's claim that plaintiff consented to media's entry into home by calling paramedics: "One seeking emergency care does not thereby `open the door' for persons without any clearly identifiable and justifiable official reason who may wish to enter the premises where the medical aid is being administered."].) Other than the two patients and Cooke, only three people 865*865 were present in the helicopter, all Mercy Air staff. As the Court of Appeal observed, "[i]t is neither the custom nor the habit of our society that any member of the public at large or its media representatives may hitch a ride in an ambulance and ogle as paramedics care for an injured stranger." (See also Green v. Chicago Tribune Co., supra, 221 Ill.Dec. 342, 675 N.E.2d at p. 252 [hospital room not public place]; Barber v. Time, Inc., supra, 159 S.W.2d at p. 295 ["Certainly, if there is any right of privacy at all, it should include the right to obtain medical treatment at home or in a hospital ... without personal publicity."].)

Second, Ruth was entitled to a degree of privacy in her conversations with Carnahan and other medical rescuers at the accident scene, and in Carnahan's conversations conveying medical information regarding Ruth to the hospital base. Cooke, perhaps, did not intrude into that zone of privacy merely by being present at a place where he could hear such conversations with unaided ears. But by placing a microphone oh Carnahan's person, amplifying and recording What she said and heard, defendants may have listened in on conversations the parties could reasonably have expected to be private.

The Court of Appeal held plaintiffs had no reasonable expectation of privacy at the accident scene itself because the scene was within the sight and hearing of members of the public. The summary judgment record, however, does not support the Court of Appeal's conclusion; instead, it reflects, at the least, the existence of tribal issues as to the privacy of certain conversations at the accident scene, as in the helicopter. The videotapes (broadcast and raw footage) show the rescue did not take place "on a heavily traveled highway," as the Court of Appeal stated, but in a ditch many yards from and below the rural superhighway, which is raised somewhat at that point to bridge a nearby crossroad. From the tapes it appears unlikely the plaintiffs' extrication from their car and medical treatment at the scene could have been observed by any persons who, in the lower court's words, "passed by" on the roadway. Even more unlikely is that any passersby on the road could have heard Ruth's conversation with Nurse Carnahan or the other rescuers.^[13]

Whether Ruth expected her conversations with Nurse Carnahan or the other rescuers to remain private and whether any such expectation was reasonable are, on the state of the record before us, questions for the jury. We note, however, that several existing legal protections for communications could support the conclusion that Ruth possessed a reasonable expectation of privacy in her conversations with Nurse Carnahan and the other rescuers. A patient's conversation with a provider of medical care in the course of 866*866 treatment, including emergency treatment, carries a traditional and legally well-established expectation of privacy. (See Evid. Code, §§ 990-1007 [physician-patient privilege]; Civ.Code, §§ 56-56.37 [Confidentiality of Medical Information Act].)^[14] Moreover, California's Invasion of Privacy Act (Pen. Code, §§ 630-637.6; see Ribas v. Clark (1985) 38 Cal.3d 355, 359, 212 Cal.Rptr. 143, 696 P.2d 637 (Ribas)) prohibits the recording of any "confidential communication" without the consent of all parties thereto. (Pen. Code, § 632, subd. (a).)

A confidential communication, for purposes of Penal Code section 632 (hereafter section 632), need not fall within an evidentiary privilege. Rather, the term includes "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering ... or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." (§ 632, subd. (c).) The Invasion of Privacy Act, as we explained in Ribas, provides legal recognition of the individual's reasonable expectation of privacy against unauthorized interception and recording of confidential conversations: "While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device. (Warden v. Kahn, supra, 99 Cal.App.3d 805, 813-814, 160 Cal.Rptr. 471.) [¶] ... [S]uch secret monitoring denies the speaker an important aspect of privacy of communication — the right to control the nature and extent of the firsthand dissemination of his statements." (Rihas, supra, 38 Cal.3d at pp. 360-361, 212 Cal. Rptr. 143, 696 P.2d 637.)^[15]

Ruth's claim, of course, does not require her to prove a statutory violation, only to prove that she had an objectively reasonable expectation of privacy in her conversations. Whether the circumstances of Ruth's extrication and helicopter rescue would reasonably have indicated to defendants, or to their agent, Cooke, that Ruth would desire and expect her communications to Carnahan and the other rescuers to be confined to them alone, and therefore not to be electronically transmitted and recorded, is a tribal issue of fact in this case. As observed earlier, whether anyone present (other than Cooke) was a mere observer, uninvolved in the rescue effort, is unclear from the summary judgment record. Also unclear is who, if anyone, could overhear conversations between Ruth and Carnahan, which were transmitted by a microphone 867*867 on Carnahan's person, amplified and recorded by defendants. We cannot say, as a matter of law, that Cooke should not have perceived he might be intruding on a confidential communication when he recorded a seriously injured patient's conversations with medical personnel.^[16]

We turn to the second element of the intrusion tort, offensiveness of the intrusion. In a widely followed passage, the Miller court explained that determining offensiveness requires consideration of all the circumstances of the intrusion, including its degree and setting and the intruder's "motives and objectives." (Miller, supra, 187 Cal. App.3d at pp. 1483-1484, 232 Cal.Rptr. 668; cited, e.g., in Hill, supra, 7 Cal.4th at p. 26, 26 Cal.Rptr.2d 834, 865 P.2d 633; Sacramento County Deputy Sheriffs' Assn. v. County of Sacramento (1996) 51 Cal.App.4th 1468, 1487, 59 Cal.Rptr.2d 834; Magenis v. Fisher Broadcasting, Inc. (1990) 103 Or.App. 555, 798 P.2d 1106, 1110; and People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., supra, 895 P.2d at p. 1282.) The Miller court concluded that reasonable people could regard the camera crew's conduct in filming a man's emergency medical treatment in his home, without seeking or obtaining his or his wife's consent, as showing "a cavalier disregard for ordinary citizens' rights of privacy" and, hence, as highly offensive. (Miller, supra, 187 Cal.App.3d at p. 1484, 232 Cal.Rptr. 668.)

We agree with the Miller court that all the circumstances of an intrusion, including the motives or justification of the intruder, are pertinent to the offensiveness element.^[17] Motivation or justification becomes particularly important when the intrusion is by a member of the print or broadcast press in the pursuit of news material. Although, as will be discussed more fully later, the First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 669, 111 S.Ct. 2513, 2518, 115 L.Ed.2d 586; Dietemann v. Time, Inc. (9th Cir.1971) 449 F.2d 245, 249 (hereafter Dietemann); Miller, supra, 187 Cal.App.3d at p. 1492, 232 Cal.Rptr. 668), the constitutional protection of the press does reflect the strong societal interest in effective and complete reporting of events, an interest that may — as a matter of to rt law — justify an intrusion that would otherwise be considered offensive. While refusing to recognize a broad privilege in newsgathering against application of generally applicable laws, the United States Supreme Court has also observed that "without some protection for seeking out the news, freedom of the press could be eviscerated." (Branzburg v. Hayes (1972) 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626; see also Nicholson v. McClatchy Newspapers (1986) 177 Cal. App.3d 509, 519-520, 223 Cal.Rptr. 58.)

In deciding, therefore, whether a reporter's alleged intrusion into private matters (i.e., physical space, conversation or data) is "offensive" and hence actionable as an invasion of privacy, courts must consider the extent to which the intrusion was, under the circumstances, justified by the legitimate motive of gathering the news. Information collecting techniques that may be highly offensive when done for socially unprotected reasons — for purposes of harassment, blackmail or prurient curiosity, for example — may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story. Thus, for example, "a continuous surveillance which is tortious when practiced by a creditor upon a debtor may not be tortious when practiced by media representatives in a situation where there is significant public interest [in discovery of the information sought]." (Hill, Defamation and Privacy Under the First Amendment (1976) 76 Comm. L.Rev. 1205,1284.)

868*868 The mere fact the intruder was in pursuit of a "story" does not, however, generally justify an otherwise offensive intrusion; offensiveness depends as well on the particular method of investigation used. At one extreme, "`routine ... reporting techniques,'" such as asking questions of people with information ("including those with confidential or restricted information") could rarely, if ever, be deemed an actionable intrusion. (Nicholson v. McClatchy Newspapers, supra, 177 Cal.App.3d at p. 519, 223 Cal.Rptr. 58; accord, Wolfson v. Lewis (E.D.Pa.1996) 924 F.Supp. 1413, 1417.) At the other extreme, violation of well-established legal areas of physical or sensory privacy — trespass into a home or tapping a personal telephone line, for example — could rarely, if ever, be justified by a reporter's need to get the story. Such acts would be deemed highly offensive even if the information sought was of weighty public concern; they would also be outside any protection the Constitution provides to newsgathering. (Cohen v. Cowles Media Co., supra, 501 U.S. at p. 669, 111 S.Ct. at p. 2518; Dietemann, supra, 449 F.2d at p. 249.)

Between these extremes lie difficult cases, many involving the use of photographic and electronic recording equipment. Equipment such as hidden cameras and miniature cordless and directional microphones are powerful investigative tools for newsgathering, but may also be used in ways that severely threaten personal privacy. California tort law provides no bright line on this question; each case must be taken on its facts.

On this summary judgment record, we believe a jury could find defendants' recording of Ruth's communications to Carnahan and other rescuers, and filming in the air ambulance, to be "`highly offensive to a reasonable person.'" (Miller, supra, 187 Cal. App.3d at p. 1482, 232 Cal.Rptr. 668, italics omitted.) With regard to the depth of the intrusion (id. at p. 1483, 232 Cal.Rptr. 668), a reasonable jury could find highly offensive the placement of a microphone on a medical rescuer in order to intercept what would otherwise be private conversations with an injured patient. In that setting, as defendants could and should have foreseen, the patient would not know her words were being recorded and would not have occasion to ask about, and object or consent to, recording. Defendants, it could reasonably be said, took calculated advantage of the patient's "vulnerability and confusion." (Id. at p. 1484, 232 Cal.Rptr. 668.) Arguably, the last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual television viewers.

For much the same reason, a jury could reasonably regard entering and riding in an ambulance — whether on the ground or in the air — with two seriously injured patients to be an egregious intrusion on a place of expected seclusion. Again, the patients, at least in this case, were hardly in a position to keep careful watch on who was riding with them, or to inquire as to everyone's business and consent or object to their presence. A jury could reasonably believe that fundamental respect for human dignity requires the patients' anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes (or cameras) of others.

Nor can we say as a matter of law that defendants' motive — to gather usable material for a potentially newsworthy story — necessarily privileged their intrusive conduct as a matter of common law tort liability. A reasonable jury could conclude the producers' desire to get footage that would convey the "feel" of the event — the real sights and sounds of a difficult rescue — did not justify either placing a microphone on Nurse Carnahan or filming inside the rescue helicopter. Although defendants' purposes could scarcely be regarded as evil or malicious (in the colloquial sense), their behavior could, even in light of their motives, be thought to show a highly offensive lack of sensitivity and respect for plaintiffs' privacy. (Miller, supra, 187 Cal.App.3d at p. 1484, 232 Cal.Rptr. 668.) A reasonable jury could find that defendants, in placing a microphone on an emergency treatment nurse and recording her conversation with a distressed, disoriented and severely injured patient, without the patient's knowledge or consent, acted with highly offensive 869*869 disrespect for the patient's personal privacy comparable to, if not quite as extreme as, the disrespect and insensitivity demonstrated in Miller.

Turning to the question of constitutional protection for newsgathering, one finds the decisional law reflects a general rule of nonprotection: the press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws. (Cohen v. Cowles Media Co., supra, 501 U.S. at pp. 669-670, 111 S.Ct. at pp. 2518-2519; see Branzburg v. Hayes, supra, 408 U.S. at pp. 680-695, 92 S.Ct. at pp. 2656-2664 [extensive discussion, concluding press enjoys no special immunity from questioning I Regarding sources with information on criminal activities under investigation by grand jury]; Pell v. Procunier (1974) 417 U.S. 817, 832-835, 94 S.Ct. 2800, 2809-2811, 41 L.Ed.2d 495 [no special right of access to state prisoners for interviews]; Dietemann, supra, 449 F.2d at p. 249 [First Amendment is not a license for electronic intrusion; investigative journalism can be successfully practiced without secret recording]; Shevin v. Sunbeam Television Corp. (Fla.1977) 351 So.2d 723, 725-727 [under Branzburg, Pell, and Dietemann, Florida statute prohibiting nonconsensual recording of private conversations may constitutionally be applied to news reporters];)

"It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil and criminal laws of general applicability. Under prior cases, otherwise valid laws, serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed." (Branzburg v. Hayes, supra, 408 U.S. at pp. 682-683, 92 S.Ct. at pp. 2657-2658.) California's intrusion tort and section 632 are both laws of general applicability. They apply to all private investigative activity, whatever its purpose and whoever the investigator, and impose no greater restrictions on the media than on anyone else. (If anything, the media enjoy some degree of favorable treatment under the California intrusion tort, as a reporter's motive to discover socially important information may reduce the offensiveness of the intrusion.) These laws serve the undisputedly substantial public interest in allowing each person to maintain an area of physical and sensory privacy in which to live. Thus, defendants enjoyed no constitutional privilege, merely by virtue of their status as members of the news media, to eavesdrop in violation of section 632 or otherwise to intrude tortuously oh private places, conversations or information.

Courts have impliedly recognized that a generally applicable law might, under some circumstances, impose an "impressible burden" on newsgathering (Miller, supra, 187 Cal.App.3d at p. 1493, 232 Cal.Rptr. 668); such a burden might be found in a law that, as applied to the press, would result in "a significant constriction of the flow of news to the public" and thus "eviscerate[]" the freedom of the press. (Branzburg v. Hayes, supra, 408 U.S. at pp. 693, 681, 92 S.Ct. at pp. 2662, 2656.) No basis exists, however, for concluding that either section 632 or the intrusion tort places such a burden on the press, either in general or under the circumstances of this case. The conduct of journalism does not depend, as a general matter, on the use of secret devices to record private conversations. (Accord, Dietemann, supra, 449 F.2d at p. 249 ["We strongly disagree... that hidden mechanical contrivances are `indispensable tools' of newsgathering. Investigative reporting is an ancient art; its successful practice long antecedes the invention of miniature cameras and electronic devices."]; Shevin v. Sunbeam Television Corp., supra, 351 So.2d at p. 727 ["News gathering is an integral part of news dissemination, but hidden mechanical contrivances are not indispensable tools of news gathering."].) More specifically, nothing in the record or briefing here suggests that reporting on automobile accidents and medical rescue activities depends on secretly recording accident victims' conversations with rescue personnel or on filming inside an occupied ambulance. Thus, if any exception exists to the general rule that "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally" (Branzburg v. 870*870 Hayes, supra, 408 U.S. at p. 684, 92 S.Ct. at p. 2658), such exception is inapplicable here.^[18]

As should be apparent from the above discussion, the constitutional protection accorded newsgathering, if any, is far narrower than the protection surrounding the publication of truthful material; consequently, the fact that a reporter may be seeking "newsworthy" material does not in itself privilege the investigatory activity. The reason for the difference is simple: the intrusion tort, unlike that for publication of private facts, does not subject the press to liability for the contents of its publications. News worthiness, as we stated earlier, is a complete bar to liability for publication of private facts and is evaluated with a high degree of deference to editorial judgment. The same deference is not due, however, when the issue is not the media's right to publish or broadcast what they choose, but their right to intrude into secluded areas or conversations in pursuit of publishable material. At most, the Constitution may preclude tort liability that would "place an impressible burden on newsgatherers" (Miller, supra, 187 Cal.App.3d at p. 1493, 232 Cal.Rptr. 668) by depriving them of their `"indispensable tools'" (Dietemann, supra, 449 F.2d at p. 249).

Defendants urge a rule more protective of press investigative activity. Specifically, they seek a holding that "when intrusion claims are brought in the context of newsgathering conduct, that conduct be deemed protected so long as (1) the information being gathered is about a matter of legitimate concern to the public and (2) the underlying conduct is lawful (i.e., was undertaken without fraud, trespass, etc.)." Neither tort law nor constitutional precedent and policy supports such a broad privilege. Miller, Dietemann, and 124 Wolf son v. Lewis, supra, 924 F.Supp. 1413, were all cases in which the reporters and photographers were acting in pursuit of newsworthy material, but were held to have tortuously intruded on the plaintiffs' privacy because their conduct was highly offensive to a reasonable person, not because they had committed any independent crime or tort.^[19] (See also Baugh v. CBS, Inc. (1993) 828 F.Supp. 745, 757 [intrusion tort does not require existence of technical trespass]; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1030-1032, 37 Cal.Rptr.2d 431 [no newsgathering defense to claim of intentional infliction of emotional 871*871 harm for television reporter's telling small children their neighbors had been killed while filming their shocked reaction, even if reporter hoped the children's reaction would be "`newsworthy,' e.g., suitable to redeem a promise of `film at eleven'"]; Rest.2d Torts, § 652B, illus. 1, p. 379 ["A, a woman, is sick in a hospital room with a rare disease that arouses public curiosity. B, a newspaper reporter, calls her on the telephone and asks for an interview, but she refuses to see him. B then goes to the hospital, enters A's room and over her objection takes her photograph. B has invaded A's privacy."].)

As to constitutional policy, we repeat that the threat of infringement on the liberties of the press from intrusion habitat is minor compared with the threat from liability for publication of private facts. Indeed, the distinction led one influential commentator to assert flatly that "[i]ntrusion does not raise first amendment difficulties since its perpetration does not involve speech or other expression." (Nimmer, supra, 56 Cal.L.Rev. at p. 957.) Such a broad statement is probably not warranted; a ability rule, for example, that punished as intrusive a reporter's merely asking questions about matters an organization or person did not choose to publicize would likely be deemed an impressible restriction on press freedom. But no constitutional precedent or principle of which we are aware gives a reporter general license to intrude in an objectively offensive manner into private places, conversations or matters merely because the reporter thinks he or she may thereby find something that will warrant publication or broadcast.

CONCLUSION

The claim of these accident victims that their privacy was invaded by the production and broadcast of a documentary segment on their rescue raises questions about how the news media obtain their material (the intrusion claim), as well as about what they choose to publish or broadcast (the publication of private facts claim). Largely for constitutional reasons, the paths we have taken in analyzing these two privacy claims have diverged and led to different results.

The broadcast details of Ruth's rescue of which she complains were, as a matter of law, of legitimate public concern because they were substantially relevant to the newsworthy subject of the piece and their intrusiveness was not greatly disproportionate to their relevance. That analytical path is dictated by the danger of the contrary approach; to allow liability because this court, or a jury, believes certain details of the story as broadcast were not important or necessary to the purpose of the documentary, or were in poor taste or overly sensational in impact, would be to assert impressible supervisory power over the press.

The intrusion claim calls for a much less deferential analysis. In contrast to the broad privilege the press enjoys for publishing truthful, newsworthy information in its possession, the press has no recognized constitutional privilege to violate generally applicable laws in pursuit of material. Nor, even absent an independent crime or tort, can a highly offensive intrusion into a private place, conversation, or source of information generally be justified by the plea that the intruder hoped thereby to get good material for a news story. Such a justification may be available when enforcement of the tort or other law would place an impermissibly severe burden on the press, but that condition is not met in this case.

In short, the state may not intrude into the proper sphere of the news media to dictate what they should publish and broadcast, but neither may the media play tyrant to the people by unlawfully spying on them in the name of newsgathering. Summary judgment for the defense was proper as to plaintiffs' cause of action for publication of private facts (the second cause of Inaction), but improper as to the cause of action for invasion of privacy by intrusion (the first cause of action).

DISPOSITION

The judgment of the Court of Appeal is affirmed except insofar as the Court of Appeal reversed and remanded for further proceedings 872*872 on Ruth Shulman's cause of action for publication of private facts.

GEORGE, C.J., and KENNARD, J., concur.

KENNARD, Justice, concurring.

Applying existing California tort law, the plurality opinion holds that to establish a cause of action for invasion of privacy by publication of private facts the plaintiff must show that a private fact was publicly disclosed, that the disclosure would be offensive and objectionable to a reasonable person, and that the private fact was not newsworthy. I agree that here summary judgment was properly entered against plaintiffs on that cause of action. There is, however, a tension between the plurality opinion's rule of liability for publication of private facts and some aspects of the United States Supreme Court's current First Amendment jurisprudence. In my view, the potential clash in this area of law between personal privacy interests and the First Amendment's guarantee of freedom of speech and of the press warrants a more detailed examination than the plurality opinion has undertaken.

Privacy is a fundamental constituent of human identity and of the communities we inhabit. (See Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort (1989) 77 Cal. L.Rev. 957.) Preserving a sphere of private thought, speech, and action, and controlling who are to be let into that sphere and the conditions under which they may enter, is an essential part of human dignity and autonomy. We define ourselves by controlling what we disclose to the world and what we preserve from public view. In an earlier age, privacy was more easily maintained, for the social and physical barriers that protected it were either prohibitively costly or physically impossible to breach. Not so today, when the social and physical barriers that formerly protected our privacy are dissolving in the face of technological and economic changes. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 921, 59 Cal.Rptr.2d 696, 927 P.2d 1200 (cone, and dis. opn. of Kennard, J.).) Personal information that previously could only have been gathered at great expense, or could not have been gathered at all, is now routinely collected, analyzed, packaged, and distributed instantaneously and at trivial cost. Our secrets, great or small, can now without our knowledge hurtle around the globe at the speed of light, preserved indefinitely for future recall in the electronic limbo of computer memories. These technological and economic changes in turn have made legal barriers more essential to the preservation of our privacy.

The free flow of truthful information, however, is also a fundamental value of our society, embodied in the First Amendment to the federal Constitution. As the plurality opinion notes, the United States Supreme Court has not yet attempted to fashion a general rule striking a balance between our competing interests in preserving a sphere of personal privacy and in unfettered publication of truthful information. Because of the complexities of the problem, crafting a general rule in this area would not be an easy task. The authors of two prominent constitutional law treatises, for example, take opposite views on whether the First Amendment permits a cause of action for truthful publication of private facts. Professors Rotunda and Nowak would not allow the cause of action: "[I]n light of later constitutional cases, and given the general [First Amendment] rationale articulated by the Supreme Court over the years, the state should always recognize that truth is a defense in a defamation or right of privacy action...." (4 Rotunda & Nowak, Treatise on Constitutional Law (2d ed. 1992) § 20.36, p. 231.) Professor Tribe, on the other hand, takes the view that the First Amendment permits the cause of action: "[W]hen government acts to limit the untrammeled gathering, recording, or dissemination of data or statements about an individual, of course it inhibits speech — but it also vindicates the individual's ability to control what others are told about his or her life. Such control constitutes a central part of the right to shape the `self that any individual presents to the world." (Tribe, American Constitutional Law (2d ed. 1988) § 12-14, p. 887.)

The plurality opinion tries to balance these two values by using the concept of newsworthiness 873*873 to define a general limit on the scope of tort liability for disclosure of private facts; it acknowledges only a "theoretical risk" that the tort would intrude on expression protected by the First Amendment. (Plur. opn., ante, at p. 859, fn. 8 of 74 Cal.Rptr.2d, at p. 485, fn. 8 of 955 P.2d.) I am not so sanguine.

The "newsworthiness" rule of liability may raise a number of concerns under at least some strains of the United States Supreme Court's current First Amendment doctrine. First, turning as it does on an inevitably subjective determination of whether the public's interest in a story is "legitimate" or "morbid," the "newsworthiness" rule suppresses truthful speech on the basis of its content — the central evil of censorship. Content based restrictions on speech bear a heavy burden, for "the point of all speech protection ... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful." (Hurley v. Irish-American Gay Group (1995) 515 U.S. 557, 574, 115 S.Ct. 2338; 2348, 132 L.Ed.2d 487.) As Hurley explains: "The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis." (Id. at p. 579,115 S.Ct. at p. 2350.) "It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." (Rosenberger v. Rector & Visitors of Univ. of Vo, (1995) 515 U.S. 819, 828, 115 S.Ct. 2510, 2516, 132 L.Ed.2d 700.) Accordingly, "[c]ontentbased regulations are presumptively invalid." (R.A.V. v. City of St. Paul, Minnesota (1992) 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305.)

To the extent the United States Supreme Court has permitted content-based speech restrictions, it has required that the restrictions be justified by a "compelling" state interest and be the least restrictive means for achieving that interest. (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707.) Indeed, without deciding whether truthful speech about private facts may ever be punished, the high court has specifically held that "where a newspaper publishes truthful information [concerning private facts] which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order." (Florida Star v. B.J.F. (1989) 491 U.S. 524, 541, 109 S.Ct. 2603, 2613, 105 L.Ed.2d 443, italics added.) The plurality opinion has not attempted to justify its liability rule by this test.

The individual or social harmfulness of speech with a particular content is rarely a justification for suppressing it. For example, in a decision summarily affirmed by the United States Supreme Court, the federal Seventh Circuit Court of Appeals struck down an Indianapolis ordinance banning constitutionally protected pornography that subordinated women because of the perceived harmfulness of such pornography, while permitting other constitutionally protected pornography. (American Booksellers Ass'n., Inc. v. Hudnut (7th Cir.1985) 771 F.2d 323; affd., 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 [mem. opn.].) It could be argued that the "publication of private facts" tort is similarly unconstitutional, because it punishes the publication of a certain class of private facts — those that are not newsworthy — based on its perceived harmfulness while permitting publication of the same private facts if they are newsworthy.

Also, if this tort is to withstand constitutional scrutiny we must apply it not only to the press, the focus of the plurality opinion's analysis, but also to individuals who repeat the private facts of others in casual conversation. (Florida Star v. B.J.F., supra, 491 U.S. 524, 540, 109 S.Ct. 2603, 2613, 105 L.Ed.2d 443 ["When a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the small-time disseminator as well as the media giant."]; id. at p. 542, 109 S.Ct. at p. 2608 (cone. opn. of Scalia, J.) [same].) Doing so could chill much private communication, a cost the plurality opinion does not discuss.

874*874 The tension between current First Amendment doctrine and the tort of publication of private facts is also reflected in the questionable constitutional validity of two of the precedents on which the plurality opinion relies. In both Melvin v. Reid (1931) 112 Cal.App. 285, 297 P. 91 and Briscoe v. Reader's Digest Association (1971) 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34, California courts permitted the plaintiffs to bring claims for the publication of the fact that, as shown in official public records, they had been tried for (and in Briscoe convicted of) crimes many years before. In Briscoe, this court reasoned that the crime and conviction no longer were newsworthy and therefore publication of those facts could be suppressed. I doubt that the holdings of these cases have survived the high court's holding in Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 496, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328, that "the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records," a prohibition that does not depend on the newsworthiness of the material published. (See also Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97, 103, 99 S.Ct. 2667, 2671, 61 L.Ed.2d 399 ["once the truthful information was `publicly revealed' or `in the public domain' the court could not constitutionally restrain its dissemination"].) Certainly, a widespread application of Briscoe could significantly alter the practice of biography and history, for even in the case of notable figures much of what occurs in their private lives may have faded from the public mind and, under the plurality opinion's test, may no longer be newsworthy by the time the biographer or historian arrives on the scene.

I do not doubt the need to protect individual privacy against the ever-increasing intrusions upon it. I do question whether the publication of private facts can be prohibited on the basis of the perceived newsworthiness of the facts without creating a conflict with current First Amendment doctrine. Others have also questioned whether this tort can be reconciled with the First Amendment. (Hall v. Post (1988) 323 N.C. 259, 267, 372 S.E.2d 711 [rejecting "constitutionally suspect" tort of publication of private facts because of its tension with the First Amendment]; Zimmerman, Requiem for a Heavyweight A Farewell to Warren and Brandeis's Privacy Tort (1983) 68 Cornell L.Rev. 291, 306, 365 [arguing against adoption of the tort].) In particular, the "newsworthiness" standard makes liability turn on the sort of content based subjective value judgments that have long been anathema in the United States Supreme Court's First Amendment jurisprudence. It may be that someday that court will separate out private facts as a unique category of speech subject to special rules and a lesser degree of constitutional protection, as it has done for speech promoting commercial transactions. (See Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 758-760, 105 S.Ct. 2939, 2944-2946, 86 L.Ed.2d 593 (plur. opn. of Powell, J.) [characterizing speech on matters of private concern as subject to less stringent protection under the First Amendment than speech on public affairs].) Even in the commercial speech arena, however, the high court has rarely upheld restrictions suppressing truthful, non misleading statements. (See, e.g., UU Liquormart v. Rhode Island (1996) 517 U.S. 484,116 S.Ct. 1495,134 L.Ed.2d 711 [striking down ban on advertising the price of liquor].)

As in other areas requiring the reconciliation of strong but competing social interests, I would continue to mark the boundaries between the First Amendment and the "publication of private facts" tort by the method of case-by-case adjudication, as the United States Supreme Court has done. (Florida Star v. B.J.F., supra, 491 U.S. 524, 530, 109 S.Ct. 2603, 2607 ["The tension between the right which the First Amendment accords to a free press, on the one hand, and the protections which various statutes and common law doctrines accord to personal privacy against the publication of truthful information, on the other, is a subject we have addressed several times in recent years.... [A]lthough our decisions have without exception upheld the press' right to publish, we have emphasized each time that we were resolving this conflict only as it arose in a discrete factual context."]; Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. 469, 95 S.Ct. 1029.) Thus, I leave open the possibility that the plurality 875*875 opinion's "newsworthiness" rule may require further adjustment and revision in the future when we are presented with a case in which its application, unlike the situation here, would affirm liability for the publication of truthful private facts.

MOSK, J., concurs.

CHIN, Justice, concurring and dissenting.

I concur in part I of the plurality opinion. The newsworthy nature of the disclosure absolutely precludes plaintiffs' recovery under this theory, and summary judgment for defendants on this cause of action was therefore proper.

I dissent, however, from the plurality's holding that plaintiffs'"intrusion" cause of action should be remanded for trial. The critical question is whether defendants' privacy intrusion was "highly offensive to a reasonable person." (Plur. opn., ante, at p. 864 of 74 Cal.Rptr.2d, at p. 490 of 955 P.2d, italics added:) As the plurality explains, "the constitutional protection of the press does reflect the strong societal interest in effective and complete reporting of events, an interest that may — as a matter of law — justify an intrusion that would otherwise be considered offensive." (Id. at pp. 866-867 of 74 Cal. Rptr.2d, at pp. 492-493 of 955 P.2d, italics added.) I also agree with the plurality that "Information collecting techniques that may be highly offensive when done for socially unprotected reasons — for purposes of harassment, blackmail or prurient curiosity, for example — may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story." (Id. at p. 867 of 74 Cal.Rptr.2d, at p. 493 of 955 P.2d, italics added.)

Although I agree with the plurality's premises, I disagree with the conclusion it draws from those premises. The plurality concludes that a reasonable person in Ruth's position might well have assumed that her conversation with the nurses and doctors assisting her rescue would be kept private. Likewise, the plurality believes, a reasonable person in Ruth's position might not expect to find media personnel aboard a rescue helicopter. A jury might well decide that defendants' desire for complete footage did not justify these privacy intrusions. (Plur. opn., ante, at pp. 868-869 of 74 Cal.Rptr.2d, at pp. 494-495 of 955 P.2d.)

Ruth's expectations notwithstanding, I do not believe that a reasonable trier of fact could find that defendants' conduct in this case was "highly offensive to a reasonable person," the test adopted by the plurality. Plaintiffs do not allege that defendants, though present at the accident rescue scene and in the helicopter, interfered with either the rescue or medical efforts, elicited embarrassing or offensive information from plaintiffs, or even tried to interrogate or interview them. Defendants' news team evidently merely recorded newsworthy events "of legitimate public concern" (plur. opn., ante, at p. 862 of 74 Cal.Rptr.2d, at p. 488 of 955 P.2d) as they transpired. Defendants' apparent motive in undertaking the supposed privacy invasion was a reasonable and non malicious one: to obtain an accurate depiction of the rescue efforts from start to finish. The event was newsworthy, and the ultimate broadcast was both dramatic and educational, rather than tawdry or embarrassing.

No illegal trespass on private property occurred, and any technical illegality arising from defendants' recording Ruth's conversations with medical personnel was not so "highly offensive" as to justify ability. Recording the innocuous, inoffensive conversations that occurred between Ruth and the nurse assisting her (see plur. opn., ante, at pp. 849-850 of 74 Cal.Rptr.2d, at pp. 475-476 of 955 P.2d) and filming the seemingly routine, though certainly newsworthy, helicopter ride (id. at p. 850 of 74 Cal.Rptr.2d, at p. 476 of 955 P.2d) may have technically invaded plaintiffs' private "space," but in my view no "highly offensive" invasion of their privacy occurred.

We should bear in mind we are not dealing here with a true "interception" — e.g., a surreptitious wiretap by a third party — of words spoken in a truly private place — e.g., in a psychiatrist's examining room, an attorney's office, or a priest's confessional. Rather, here the broadcast showed Ruth speaking 876*876 in settings where others could hear her, and the fact that she did not realize she was being recorded does not ipso facto transform defendants' newsgathering procedures into highly offensive conduct within the meaning of the law of intrusion.

In short, to turn a jury loose on the defendants in this case is itself "highly offensive" to me. I would reverse the judgment of the Court of Appeal with directions to affirm the summary judgment for defendants on all causes of action.

MOSK, J., concurs.

BROWN, Justice, concurring and dissenting.

I concur in the plurality's conclusion that summary judgment should not have been granted as to the cause of action for intrusion, and I generally concur in its analysis of that cause of action.^[1] I respectfully dissent, however, from the conclusion that summary judgment was proper as to plaintiff Ruth Shulman's cause of action for publication of private facts. For the reasons discussed below, I would hold that there are tribal issues of material fact as to that cause of action as well.

Ironically, the plurality begins its discussion of the publication of private facts cause of action by describing it as "one of the more... well-defined areas of privacy law." (Plur. opn., ante, at p. 852 of 74 Cal.Rptr.2d, at p. 478 of 955 P.2d.) While that may have been an accurate description before today's extended exegesis, it is certainly no longer the ease. After paying lip service to this court's well-established, scholarly precedents, the plurality proceeds to ignore their test for assessing newsworthiness. Worse yet, the new test adopted in the plurality opinion seriously compromises personal privacy by rendering otherwise private facts newsworthy whenever they bear a "logical relationship" to a matter of legitimate public concern, even in situations where the news media obtains the private facts by deceptive and unlawful means.

The plurality opinion starts innocuously enough, correctly reciting the elements of a cause of action for publication of private facts: "`(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.'" (Plur. opn., ante, at p. 852 of 74 Cal.Rptr.2d, at p. 478 of 955 P.2d, quoting Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126, 188 Cal.Rptr. 762.) The plurality opinion then recounts the general test we have consistently applied in determining whether the private fact disclosed is of legitimate public concern — that is, whether it is newsworthy: "'In determining whether a particular incident is "newsworthy" and thus whether the privilege shields its truthful publication from ability, 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'" (Plur. opn., ante, at p. 856 of 74 Cal.Rptr.2d, at p. 482 of 955 P.2d, quoting Kapellas v. Kofman (1969) 1 Cal.3d 20, 36, 81 Cal.Rptr. 360, 459 P.2d 912 (hereafter Kapellas); see also Forsher v. Bugliosi (1980) 26 Cal.3d 792, 810, 812, 163 Cal.Rptr. 628, 608 P.2d 716 [same]; Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 541, 93 Cal. Rptr. 866, 483 P.2d 34 [same].)

In this case, a straightforward application of the Kapellas newsworthiness test leads to one inescapable conclusion — that, at the very least, there are tribal issues of material 877*877 fact on the question of newsworthiness. The private facts broadcast had little, if any, social value. (Kapellas, supra, 1 Cal.3d at p. 36, 81 Cal.Rptr. 360, 459 P.2d 912.) The public has no legitimate interest in witnessing Ruth's disorientation and despair. Nor does it have any legitimate interest in knowing Ruth's personal and innermost thoughts immediately after sustaining injuries that rendered her a paraplegic and left her hospitalized for months — "I just want to die. I don't want to go through this." The depth of the broadcast's intrusion into ostensibly private affairs was substantial. (Ibid.) As the plurality later acknowledges in analyzing "the depth of the intrusion" for purposes of Ruth's intrusion cause of action, "[a]rguably, the last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual television viewers. [¶] For much the same reason, a jury could reasonably regard entering and riding in an ambulance — whether on the ground or in the air — with two seriously injured patients to be an egregious intrusion on a place of expected seclusion.... A jury could reasonably believe that fundamental respect for human dignity requires the patients' anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes (or cameras) of others." (Plur. opn., ante, at pp. 868-869 of 74 Cal.Rptr.2d, at pp. 494-495 of 955 P.2d.) There was nothing voluntary about Ruth's position of public notoriety. (Kapellas, supra, 1 Cal.3d at p. 36, 81 Cal.Rptr. 360,459 P.2d 912.) She was involuntarily caught up in events of public interest, (plur. opn., ante, at p. 853 of 74 Cal.Rptr.2d, at p. 479 of 955 P.2d), all the more so because defendants appear to have surreptitiously and unlawfully recorded her private conversations with nurse Laura Carnahan. (See id. at pp. 39-41,81 Cal.Rptr. 360,459 P.2d 912.)

Inexplicably, the plurality jettisons the Kapellas newsworthiness test in favor of its own "logical relationship" test. Under this new test, "where the facts disclosed about a private person involuntarily caught up in events of public interest bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance — the broadcast was of legitimate public concern, barring liability under the private facts tort." (Plur. opn., ante, at p. 853 of 74 Cal.Rptr.2d, at p. 479 of 955 P.2d; see also id. at pp. 858-859, 860-861, 862-863, 871 of 74 Cal.Rptr.2d, at pp. 485-486, 487-488, 489-490, 497, 955 of P.2d.) Here, the plurality misapplies its own new test, wrongly concluding there are no tribal issues of material fact. (Compare id. at pp. 861-863 of 74 Cal.Rptr.2d, at pp. 486-489 of 955 P.2d [no tribal issues] with id. at pp. 863-868 of 74 Cal.Rptr.2d, at pp. 489-194 of 955 P.2d [describing the highly intrusive nature of the news media's conduct in this case].) More significantly, however, the plurality fails to acknowledge that its new test is a radical departure from that set out in Kapellas and its progeny, a departure that should be obvious to even a casual reader.

Under the plurality's new test, personal privacy must yield whenever the overall subject matter of a broadcast is newsworthy and the private facts disclosed bear a "logical relationship" to that subject matter. Thus, to "[t]he more difficult question [of] whether Ruth's appearance and words as she was extricated from the overturned car, placed in the helicopter and transported to the hospital were of legitimate public concern" (plur. opn., ante, at p. 862 of 74 Cal.Rptr.2d, at p. 488 of 955 P.2d), the plurality offers the facile answer that they were because "her disorientation and despair were substantially relevant to the segment's newsworthy subject matter" (id. at p. 863 of 74 Cal.Rptr.2d, at p. 489 of 955P.2d).

Contrary to the plurality's claim that it is "accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution" (plur. opn., ante, at p. 853 of 74 Cal.Rptr.2d, at p. 479 of 955 P.2d, italics added), in reality, it sacrifices the constitutional right to privacy on the altar of the First Amendment. Unlike the Kapellas newsworthiness test, which expressly considers both "the depth of the [broadcast's] intrusion into ostensibly private affairs" and "the 878*878 extent to which the party voluntarily acceded to a position of public notoriety" as part of the mix. Kapellas, supra, 1 Cal.3d at p. 36, 81 Cal.Rptr. 360, 459 P.2d 912), the plurality's new "logical relationship" test considers only whether the private facts disclosed are "intrusive in great disproportion to their relevance" (plur. opn., ante, at p. 853 of 74 Cal.Rptr.2d, at p. 479 of 955 P.2d).

The latter inquiry is substantially less accommodating of personal privacy than the former. Suppose, for example, that a television producer decided to broadcast a story on the reluctance of victims to report incidents of sexual assault, undeniably a newsworthy subject matter. Under the plurality's formulation, the producer would then be free to broadcast a surreptitiously and unlawfully recorded account of a specific victim's reluctance, conveyed in confidence to her therapist, because that too would undeniably bear "a logical relationship to the newsworthy subject of the broadcast" and would not be "intrusive in great disproportion to [its] relevance."^[2] (Plur. opn., ante, at p. 853 of 74 Cal.Rptr.2d, at p. 479 of 955 P.2d, italics added.) The Kapellas newsworthiness test, by contrast, would yield the correct result — namely, that the therapy session is not newsworthy because "the depth of the [broadcast's] intrusion into ostensibly private affairs" is simply too great and because the victim did not "voluntarily accede[] to a position of public notoriety." (Kapellas, supra, 1 Cal.3d at p. 36, 81 Cal.Rptr. 360, 459 P.2d 912.)

In short, I see no reason to abandon our traditional newsworthiness test, which has produced consistent and predictable results over the course of nearly three decades. As I have explained, a straightforward application of that test demonstrates there are tribal issues of material fact on the question of newsworthiness and, hence, that summary judgment should not have been granted on Ruth's cause of action for publication of private facts.

For the reasons discussed above, I would affirm the judgment of the Court of Appeal in its entirety.

BAXTER, J., concurs.

[*] Mosk and Chin, JJ., dissent.

[1] Historical scholarship has led some writers to question whether the Boston newspapers of 1890 were in fact abusively invasive of personal privacy, or whether Brandeis and Warren's hostile attitude stemmed rather from patrician adherence to an anachronistically narrow view of what was proper "news." (See Barron, Warren and Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193 (1890): Demystifying a Landmark Citation (1979) 13 Suffolk U. L.Rev. 875.) Whether or not Brandeis and Warren exaggerated the sensationalism and invasiveness of the newspapers of their day, however, they undoubtedly highlighted and gave vivid expression to a continuing legal problem — how to protect personal privacy without infringing on freedom of the press.

[2] Five justices (Chief Justice George, Justice Mosk, Justice Kennard, Justice Chin and myself) conclude summary judgment was proper on the cause of action for publication of private facts. Five justices (Chief Justice George, Justice Kennard, Justice Baxter, Justice Brown and myself) conclude summary judgment was improper on the cause of action for intrusion. Part I of this opinion's discussion expresses the views of a majority of the court's members. (See cone. & dis. opn. of Chin, J., post, at p. 875 of 74 Cal. Rptr.2d, at p. 501 of 955 P.2d.) Part II expresses a majority's views except for the reservations stated by Justice Brown. (See cone. & dis. opn. of Brown, J., post, at p. 876, fn. 1 of 74 Cal. Rptr.2d, at p. 502, fn. 1 of 955 P.2d.)

[3] Mercy Air, Warner Brothers, Inc., and television station KNBC were originally named as defendants but have been eliminated through proceedings in the trial Court of Appeal, the merits of which are not before us.

[4] The other two "Prosser torts" are presentation of the plaintiff to the public in a false light and appropriation of image or personality. (See Kapellas v. Kofman, supra, 1 Cal.3d at p. 35, fn. 16, 81 Cal.Rptr. 360, 459 P.2d 912.)

[5] 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, 253 P.2d 441.)

[6] Our discussion in Briscoe largely reflects the correct view that news worthiness 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, 93 Cal.Rptr. 866, 483 P.2d 34.) We derived this dual standard from a dictum in Time, Inc. v. Hill, supra, 385 U.S. at page 383, footnote 7, 87 S.Ct. at page 539, footnote 7. The Time footnote, however, concerned news worthiness 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 news worthiness, the Time dictum appears to fit within the analysis of news worthiness as a balancing of intrusion against justification that we adopted in Kapellas and applied in Briscoe.

[7] 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. 863 et seq. of 74 Cal.Rptr.2d, at p. 489 et seq. of 955 P.2d), 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." (Cone, and dis. opn. of Brown, J., post, at p. 878, fn. 2 of 74 Cal.Rptr.2d, at p. 504, fn. 2 of 955 P.2d.) Citing no other authority, Justice Brown attempts to find support for her argument in Kapellas, supra, 1 Cal.3d at page 36, 81 Cal.Rptr. 360, 459 P.2d 912. 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." (Id. at p. 38.)

[8] Although we therefore believe our conclusions in this case accord with the dictates of the federal Constitution, we cannot be sure without clearer guidance from the United States Supreme Court. Unless we abandon the private facts tort completely, we appear to be at a theoretical risk of creating unconstitutional liability, since the high court has thus far declined to decide "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...." (Cox Broadcasting Corp., supra, 420 U.S. at p. 491, 95 S.Ct. at p. 1044; see also Florida Star, supra, 491 U.S. at p. 533, 109 S.Ct. at p. 2609 [again declining to answer that question]; Time, Inc. v. Hill, supra, 385 U.S. at p. 383, fn. 7, 87 S.Ct. at p. 539, fn. 7 [in false light privacy case, reserving question whether truthful publication of offensive private facts may constitutionally be punished, and noting a commentator's view that news worthiness privilege may be so "`overpowering as virtually to swallow the [privacy] tort'"].)

[9] Contrary to Justice Brown's characterization of the foregoing test for news worthiness as a "radical departure" from Kapellas, supra, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (cone. & dis. opn. of Brown, J., post, at p. 877 of 74 Cal.Rptr.2d, at p. 503 of 955 P.2d), the stated test is a natural adaptation of Kapellas to a different kind of situation, one involving a private figure involuntarily caught up in a newsworthy event. (Cf. Forsher, supra, 26 Cal.3d at p. 812, 163 Cal.Rptr. 628, 608 P.2d 716 [applying both the Kapellas factors and additional relevant considerations].) To track the language of Kapellas, supra, 1 Cal.3d at page 36, 81 Cal.Rptr. 360, 459 P.2d 912, the "incident" in this case — i.e., the accident and rescue — concededly is of legitimate public concern. Viewing, therefore, the "facts published" in the context of the whole, the broadcast's intrusion into Ruth's private life is minimal as against the substantial relevance the facts bear to the subject matter, in particular the various aspects of the rescue and Nurse Carnahan's responsibilities in connection therewith. That Ruth did not "voluntarily accede[] to a position of public notoriety" is not deteriorative, but only one of a "variety of factors" to be weighed. (Ibid.)

[10] Plaintiffs dispute whether there was any such fuel leak. It is undisputed, however, that during the broadcast segment a fire fighter or paramedic tells Carnahan there is leaking gasoline, and she nevertheless crawls under the car to minister to Ruth.

[11] The United States Supreme Court has expressly reserved the question whether the government, in cases where information has been acquired unlawfully by a newspaper or by a source, may ever punish not only the unlawful acquisition, but the ensuing publication as well. (Florida Star, supra, 491 U.S. at pp. 533-536, 109 S.Ct. at pp. 2609-2611.) We do not decide that question in the present case, regarding it as going to the extent of allowable damages for intrusion. (See fn. 18, post.)

[12] Although complete lack of identification or identifiability would seemingly defeat a private facts claim, as there could be no injury, an invasion of privacy does not necessarily depend on whether the plaintiffs full name was broadcast or whether she was identifiable to all viewers. (See Haynes v. Alfred A. Knob, Inc., supra, 8 F.3d at p. 1233 [Even if plaintiffs' names had been changed in nonfiction book, factual details would have identified them "to anyone who has known [them] well for a long time (members of their families, for example), or who knew them before they got married; and no more is required for liability either in defamation law [citations] or in privacy law. [Citations.]"].)

[13] Nor are we able to discern on the tapes any "crowd of onlookers peering down at the rescue scene," as did the Court of Appeal. In the broadcast segment, when the helicopter lands at the accident scene, the camera, from a distance, captures three or four people standing on the edge of the highway, looking in the direction of the accident scene. Whether these people are connected to the rescue effort (emergency vehicles are parked on the highway shoulder near them) or what they are able to see from their vantage point (the overturned vehicle is about 50 feet from, and well below, the highway, with a number of trees in between) is unclear. On the tape of raw footage, Cooke at one point climbs the embankment and films from the shoulder in the direction of the rescue scene. The car is not visible from that vantage point; it comes into view only as Cooke, still filming, descends the embankment.

As to those gathered at the rescue site itself, it is unclear from the record, and therefore unripe for decision on summary judgment, whether any of those present — other than cameraman Cooke — were mere spectators. Most were clearly law enforcement personnel, fire fighters or paramedics. A few individuals shown on tape are not in uniform, but at times during Ruth and Wayne's extrication even some of these persons are seen assisting the rescuers, for example by holding an intravenous fluids bottle. Finally, it is unclear from the tapes if anyone other than those involved was able to hear Ruth's conversation with the nurse and paramedics.

Both parties have briefed the correctness of the Court of Appeal's assessment of the accident scene's privacy, although defendants also contend this issue is not within the original scope of our review (Cal. Rules of Court, rule 29.3(c)). Whether or not defendants are correct that this question was not reasonably comprehended in the issues raised in the petition for review, we have found it necessary to address this point in order to state and decide fairly and accurately the legal questions inherent in the case. (Cal. Rules of Court, rule 29.2(a).)

[14] We need not determine whether any violation of the Confidentiality of Medical Information Act occurred here. Mercy Air's liability for such a violation is no longer at issue, and plaintiffs did not plead any such violation by the media defendants. On remand, however, the question whether the defendants acted in concert with Mercy Air to illegally reveal confidential medical information may be relevant to plaintiffs' intrusion claim.

[15] Neither in Ribas nor in any other case have we had occasion to decide whether a communication may be deemed confidential under Penal Code section 632, subdivision (c) when a party reasonably expects and desires that the conversation itself will not be directly overheard by a nonparticipant or recorded by any person, participant or nonparticipant, but does not reasonably expect that the contents of the communication will remain confidential to the parties. (Compare Coulter v. Bank of America, supra, 28 Cal.App.4th at p. 929, 33 Cal.Rptr.2d 766 and Frio v. Superior Court, supra, 203 Cal.App.3d at pp. 1488-1490, 250 Cal.Rptr. 819 [both holding section 632 requires only that a party to the conversation reasonably expects it to be private from recording or eavesdropping] with O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 248, 273 Cal.Rptr. 674 [referring to expectation the conversation would not be "divulged" to third party] and Deteresa v. American Broadcasting Companies, Inc. (9th Cir.1997) 121 F.3d 460, 463-464 [reading O'Laskey v. Sortino, supra, as requiring expectation of secrecy of contents and predicting this court would adopt such interpretation of section 632].) We need not resolve that issue here, because under either interpretation of section 632, subdivision (c) tribal issues exist whether Ruth had a reasonable expectation of privacy in her communications to medical personnel.

[16] The trial court denied, on grounds of delay, plaintiffs' request to amend their complaint to allege a violation of Penal Code section 632. The Court of Appeal affirmed the ruling and, as plaintiffs did not petition for review of that decision, its merits are not before us. As the Court of Appeal observed, however, Ruth's contention Cooke illegally recorded her conversations with Carnahan is comprehended in the complaint's claim of intrusion and the substantive law relating to that claim.

[17] Among other factors, an intrusion may be deemed more offensive to the extent the intruder's behavior created a risk that the target's efforts to evade or resist the intrusion would lead to physical harm to the intruder, the target or others.

[18] Defendants urge us to hold that any damages for intrusion do not include compensation for injury resulting from the publication of material gathered through intrusion. The only intrusion case defendants cite on this point is against them. (Dietemann, supra, 449 F.2d at pp. 249-250 [allowing publication damages in intrusion case]; see generally Hill, Defamation and Privacy Under the First Amendment, supra, 76 Colum. L.Rev at pp. 1281-1286 [discussing various approaches].) We do not reach the question, as the measure of plaintiffs' damages is not before us on this appeal from summary judgment in favor of the defense.

[19] In Miller the camera crew's entry into the Miller home was also deemed a trespass (Miller, supra, 187 Cal.App.3d at p. 1480, 232 Cal.Rptr. 668), but the court's discussion of the intrusion tort does not depend on this fact. (Id. at pp. 1482-1484, 232 Cal.Rptr. 668.)

In Dietemann, supra, reporters for Life Magazine gained consensual access to the home office of a quack doctor, where they secretly photographed him and recorded his remarks as he purportedly diagnosed a medical condition of one of the reporters. (449 F.2d at p. 246.) The federal court, applying California law, concluded the facts showed an invasion of privacy. (Id. at pp. 247-249.) Presumably because a peaceable entry by consent does not constitute trespass under California law (see 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 607, p. 706), no question of liability for trespass arose in Dietemann.

In Wolfson v. Lewis, supra, 924 F.Supp. 1413, television reporters doing a story on the high salaries paid to executives of health care companies physically pursued a family that included three such executives in an effort to get "ambush" interviews with them, and attempted to intercept with a directional microphone conversations they had at a family home. The federal district court granted preliminary injunctive relief against such behavior, finding the plaintiffs likely to prevail on their claim the reporters' harassment and spying was a highly offensive intrusion into their privacy. (Id. at pp. 1432-1434.) The court expressly stated its finding of a tortuous intrusion was not based on any alleged trespass. (Id. at p. 1434.) Nor was the court's finding of a tortuous intrusion logically dependent on violation of state anti-eavesdropping statutes, although two such statutes were cited in support of the privacy element of the intrusion tort (in the same manner as we have cited section 632). (924 F.Supp. at p. 1434.)

[1] I decline to join the plurality opinion's discussion of the intrusion cause of action in its entirety. As the plurality notes, "[t]he conduct of journalism does not depend, as a general matter, on the use of secret devices to record private conversations." (Plur. opn., ante, at p. 869 of 74 Cal.Rptr.2d, at p. 495 of 955 P.2d.) Therefore, I do not share the view that "[e]quipment such as hidden cameras and miniature cordless and directional microphones are powerful investigative tools for newsgathering." (Id. at p. 868 of 74 Cal.Rptr.2d, at p. 494 of 955 P.2d.) On a more fundamental level, I disagree with the artificial barrier the plurality erects between the publication of private facts and the intrusion causes of action. Unlike the plurality, for instance, I would hold that the depth of the intrusion into private affairs and the lawfulness of the news media's conduct are relevant to both causes of action.

[2] Apparently recognizing the absurdity of precluding recovery under these circumstances, the plurality all but concedes that damages under an intrusion cause of action must include compensation for injury resulting from the broadcast of private facts gathered through intrusion. (Plur. opn., ante, at p. 870, fn. 18 of 74 Cal.Rptr.2d, at p. 496, fn. 18 of 955 P.2d.) Likewise, the plurality conveniently sidesteps the significance of unlawful acquisition to a publication of private facts cause of action, "regarding it as going [only] to the extent of allowable damages for intrusion." (Id. at p. 863, fn. 11 of 74 Cal. Rptr.2d, at p. 489, fn. 11 of 955 P.2d.) The only reasoning behind this ipse digit — it is so because we say so. In reality, unlawful acquisition is clearly relevant to both "the depth of the [broadcast's] intrusion into ostensibly private affairs" and "the extent to which the party voluntarily acceded to a position of public notoriety" (Kapellas, supra, 1 Cal.3d at p. 36, 81 Cal.Rptr. 360, 459 P.2d 912), two key factors in the traditional newsworthiness formulation.

ANDERSON, Judge:

            Sally McCormick filed a complaint alleging that her physician, Kent England, breached a duty of confidentiality by disclosing information about her emotional health during a divorce proceeding involving her former husband. The special circuit court judge struck the allegation from the complaint, finding it did not state a cause of action. McCormick appeals. We hold South Carolina shall recognize a cause of action for a physician's breach of a duty of confidentiality. Accordingly, we reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

            Dr. England was the family physician for McCormick, her former husband, and their children. McCormick and her husband became involved in a divorce action in which custody of the children was at issue. In support of his Motion for Emergency Relief and a Restraining Order, McCormick's husband submitted two letters to the family court regarding McCormick's emotional status. One letter was from a licensed social worker, defendant Michael Meyers, who alleged that McCormick had a severe drinking problem which caused her to be a danger to herself and to her family. The other letter was prepared by Dr. England and was addressed "To Whom It May Concern." In his letter, Dr. England diagnosed McCormick as suffering from "major depression and alcoholism, acute and chronic." Further, Dr. England stated the children had experienced school difficulties due to the family 631*631 discord caused by McCormick's drinking. He stated it was his medical opinion that McCormick was "a danger to herself and to her family with her substance abuse and major depressive symptoms," and concluded that she required hospitalization. There is no indication in the record that the letter was prepared under court order.[1]

            McCormick brought this action for negligence, libel, invasion of privacy, outrage, breach of confidence, and civil conspiracy against Dr. England and Meyers. She alleged in her fifth cause of action for breach of confidence that Dr. England and Meyers had breached "a duty of non-disclosure of confidential communications with the plaintiff concerning her mental health conditions" by publishing and disseminating these confidential communications to the public "in direct contravention of South Carolina statutory law." Specifically, McCormick alleged a duty of confidentiality existed pursuant to S.C.Code Ann. § 19-11-95 (Supp.1996), entitled "Confidences of patients of mental illness or emotional conditions."

            Dr. England filed a motion to strike the fifth cause of action for breach of confidence on the basis the facts alleged failed to constitute a cause of action.[2] At the hearing on the motion, McCormick additionally relied on the Physicians' Patient Records Act, S.C.Code Ann. §§ 44-115-10 to -150 (Supp.1996), which prohibits the disclosure of medical records without the patient's consent.

            The judge granted the motion to strike the breach of confidence action as to Dr. England, stating, "It is well known that South Carolina does not recognize the physician-patient privilege at common law." The judge found there was no statutory duty of confidentiality alleged that was applicable to Dr. England. The judge noted that, under its terms, § 19-11-95 applies only to licensed psychologists, counselors, family therapists, social workers, and registered nurses. Therefore, 632*632 the statute did not apply to Dr. England. Further, since the letter did not disclose any medical records as such, the judge found the "duty of confidentiality" imposed by the Records Act, §§ 44-115-10 to -150, was also inapplicable. Finally, the judge found that, in any event, there was no breach of confidence resulting from Dr. England's disclosures because "the letter was written out of necessity and for the express purpose of protecting others as well as [McCormick] herself due to her mental and emotional condition at that time."

            McCormick filed a motion to alter or amend the order in which she argued that a physician's duty of confidentiality exists under the common law, and that her cause of action should not have been stricken if she was entitled to recovery under any theory. The judge denied the motion, stating he would have considered allowing McCormick to amend her pleadings to allege a cause of action for common law breach of confidence, but that he was not convinced such a duty exists since South Carolina does not recognize the physician-patient privilege. He also noted that any damages which might be recovered could be recovered under her claim for invasion of privacy. Finally, the judge found that even if a cause of action for breach of a duty of confidentiality existed, Dr. England's letter would not violate that duty "because it was necessary in the proceeding before the court for the protection of [McCormick] and her family that the information be disclosed to the court." McCormick appeals, arguing the trial court erred in finding South Carolina does not recognize the tort of breach of confidence applicable to the physician-patient relationship, in deciding an issue of first impression on a motion to strike, and in holding the publication was not a breach of the duty of confidentiality.

ISSUE

Does South Carolina recognize a cause of action for a physician's breach of the duty of confidentiality?

STANDARD OF REVIEW

            A motion to strike which challenges a theory of recovery in the complaint is in the nature of a motion to dismiss under Rule 12(b)(6), SCRCP. A ruling on a motion to 633*633 dismiss a claim must be based solely on the allegations set forth on the face of the complaint. The motion cannot be sustained if the facts alleged and the inferences reasonably deducible therefrom would entitle the plaintiff to any relief on any theory of the case. See Dye v. Gainey, 320 S.C. 65, 463 S.E.2d 97 (Ct.App.1995). The question is whether in the light most favorable to the plaintiff, and with every reasonable doubt resolved in her behalf, the complaint states any valid claim for relief. The cause of action should not be struck merely because the court doubts the plaintiff will prevail in the action. Id. at 68, 463 S.E.2d at 99.

LAW/ANALYSIS

            McCormick argues the trial court erred in finding South Carolina does not recognize the common law tort of breach of confidence as applied to the physician-patient relationship.[3] We agree.

            Whether a separate tort action for a physician's breach of a duty of confidentiality exists under the common law is a novel issue in this state. Dr. England contends South Carolina courts have previously ruled that no duty of confidentiality exists between a physician and patient; therefore, there can be no action for its breach. He cites Aakjer v. Spagnoli, 291 S.C. 165, 173, 352 S.E.2d 503, 508 (Ct.App.1987), wherein this Court stated, "There is no physician-patient privilege in South Carolina."

            "At common law neither the patient nor the physician has the privilege to refuse to disclose in court a communication of one to the other, nor does either have a privilege 634*634 that the communication not be disclosed to a third person." 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 169 (1981) (emphasis added). Although many states have statutorily created a "physician-patient testimonial privilege," South Carolina has not enacted a similar statute and does not recognize the physician-patient privilege. Peagler v. Atlantic Coast Line R.R. Co., 232 S.C. 274, 101 S.E.2d 821 (1958) (statutes have been enacted in most states making communications between a physician and patient privileged from compulsory disclosure, but there is no such statute in South Carolina). However, the absence of a testimonial privilege prohibiting certain in-court disclosures is not determinative of our issue because this evidentiary privilege is distinguishable from a duty of confidentiality. As our Supreme Court recently observed in South Carolina State Board of Medical Examiners v. Hedgepath, 325 S.C. 166, 480 S.E.2d 724 (1997): "The terms `privilege' and `confidences' are not synonymous, and a professional's duty to maintain his client's confidences is independent of the issue whether he can be legally compelled to reveal some or all of those confidences, that is, whether those communications are privileged." Id. at 169, 480 S.E.2d at 726.

            Hedgepath was a disciplinary proceeding against a physician rather than a private action seeking damages for breach of confidence; however, it involves facts strikingly similar to the case on appeal. In Hedgepath, a physician, who initially acted as the family therapist for a married couple and then as an individual therapist for the wife, prepared an affidavit for use at a family court hearing. The physician provided the affidavit to the husband's attorney without consulting or obtaining permission from the wife. The affidavit was not compelled by subpoena or other legal process. The State Board of Medical Examiners disciplined the physician for misconduct for breaching a duty of confidentiality imposed by the regulations governing the medical profession. See 26 S.C.Code Ann. Regs. 81-60(D) (Supp.1996) ("A physician shall respect the rights of patients ... and shall safeguard patient confidence within the constraints of the law."). The Board is authorized to discipline a physician for misconduct pursuant to S.C.Code Ann. § 40-47-200 (Supp.1996).

            The circuit court reversed, finding a South Carolina physician has no ethical duty to maintain a patient's confidences. 635*635 The court reasoned that since no law prohibited the physician from making the affidavit, the regulation had not been violated.

            The Supreme Court reversed and reinstated the Board's decision. The court held that a physician commits misconduct when he reveals a patient's confidences where the revelation is neither compelled by law (i.e. by subpoena or statute) nor consented to by the patient. The Supreme Court found the circuit judge erred in finding no duty of confidentiality exists in South Carolina merely because the state does not recognize the physician-patient evidentiary privilege. The court concluded the physician violated Reg. 81-60(D) when he voluntarily provided an affidavit which revealed confidences entrusted to him by the wife. The Supreme Court explained that "Reg. 81-60(D) enjoins a physician to maintain his patients' confidences within the constraints (or limitations) of the law." Id. at 169, 480 S.E.2d at 726. Although the Supreme Court recognized that physicians owe their patients a duty of confidentiality within the limits of the law, it did not address whether a breach of the duty is actionable as a separate tort.

Breach of Physician's Duty of Confidentiality as Independent Tort

            A person who lacks medical training usually must disclose much information to his or her physician which may have a bearing upon diagnosis and treatment. Such disclosures are not totally voluntary; therefore, in order to obtain cooperation, it is expected that the physician will keep such information confidential. See generally 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 169 (1981). "Being a fiduciary relationship, mutual trust and confidence are essential." Id. at § 167.

            The belief that physicians should respect the confidences revealed by their patients in the course of treatment is a concept that has its genesis in the Hippocratic Oath, which states in pertinent part: "Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all such should be kept secret." Taber's Cyclopedic Medical Dictionary 902 (17th ed. 1993).

            636*636 The modern trend recognizes that the confidentiality of the physician-patient relationship is an interest worth protecting. See generally Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, 82 Colum.L.Rev. 1426 (1982). A majority of the jurisdictions faced with the issue have recognized a cause of action against a physician for the unauthorized disclosure of confidential information unless the disclosure is compelled by law or is in the patient's interest or the public interest.[4] See, e.g., Hammonds v. Aetna Cas. & Sur. Co., 243 F.Supp. 793 (N.D.Ohio 1965); Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973); Vassiliades v. Garfinckel's, 492 A.2d 580 (D.C.1985); Leger v. Spurlock, 589 So.2d 40 (La.Ct.App.1991); Alberts v. Devine, 395 Mass. 59, 479 N.E.2d 113 (1985), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Saur v. Probes, 190 Mich.App. 636, 476 N.W.2d 496 (1991); Brandt v. Medical Defense Assocs., 856 S.W.2d 667 (Mo.1993) (en banc); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920); Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962); Estate of Behringer v. Medical Ctr. at Princeton, 249 N.J.Super. 597, 592 A.2d 1251 (Law Div.1991); MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801 (N.Y.App.Div.1982); Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985) (en banc); Schaffer v. Spicer, 88 S.D. 36, 215 N.W.2d 134 (1974); Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814 (1958); Morris v. Consolidation Coal Co., 191 W.Va. 426, 446 S.E.2d 648 (1994).

            In the absence of express legislation, courts have found the basis for a right of action for wrongful disclosure in four main sources: (1) state physician licensing statutes, (2) evidentiary rules and privileged communication statutes which prohibit a physician from testifying in judicial proceedings, (3) common law principles of trust, and (4) the Hippocratic Oath and principles of medical ethics which proscribe the revelation of patient confidences. Vassiliades v. Garfinckel's, 492 A.2d 580, 590 (D.C.1985).[5] The jurisdictions that recognize the duty of 637*637 confidentiality have relied on various theories for the cause of action, including invasion of privacy, breach of implied contract, medical malpractice, and breach of a fiduciary duty or a duty of confidentiality. See generally Judy E. Zelin, Annotation, Physician's Tort Liability for Unauthorized Disclosure of Confidential Information About Patient, 48 A.L.R.4th 668 (1986).

            In Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973), Horne's physician disclosed information to his employer, contrary to his express instructions. Horne alleged that the doctor-patient relationship was a confidential relationship which created a fiduciary duty by the doctor, that the unauthorized release of information breached the fiduciary duty, and further, that it violated the Hippocratic Oath, constituting unprofessional conduct.

            The Supreme Court of Alabama held there was a confidential relationship between a physician and patient which imposed a duty upon the physician not to disclose information concerning the patient obtained in the course of treatment. The court noted that, although the state had not enacted the physician-patient testimonial privilege, this did not control the issue of liability of a physician for unauthorized extra-judicial disclosures of such information. The court stated it is "important 638*638 that patients seeking medical attention be able to freely divulge information about themselves to their attending physician without fear that the information so revealed will be frivolously disclosed[.]" Id. at 829.

            In Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962), the Supreme Court of New Jersey stated that, ordinarily, a physician receives information relating to a patient's health in a confidential capacity and should not disclose such information without the patient's consent except where the public interest or the private interest of the patient so demands. Id. at 349. The court observed that it was not concerned with the physician-patient privilege because "it deals with testimony in a judicial proceeding." Id. at 348. The court explained the importance of the physician-patient duty of confidentiality: "A patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public property. Only thus can the purpose of the relationship be fulfilled." Id. at 349.

            In Schaffer v. Spicer, 88 S.D. 36, 215 N.W.2d 134 (1974), Schaffer brought an action against her psychiatrist, Dr. Spicer, for wrongfully disclosing confidential information. Dr. Spicer gave a detailed affidavit concerning Schaffer's mental health to her ex-husband's attorney during litigation seeking a change of custody of their children. Schaffer relied on a statute which provided that, unless the patient consents, a physician cannot be examined in a civil action as to any information acquired in treating the patient. Id. at 136. The court noted that "[t]he physician-patient privilege expresses a long-standing policy to encourage uninhibited communication between a physician and his patient." Id. at 138.

            After noting that when a court is called upon to determine custody of children it must consider all relevant circumstances, including the fitness of each parent, the court stated that it was not concerned with what the doctor might be compelled to disclose if he were a witness giving evidence in a judicial proceeding. Rather, the court observed that the affidavit was first published to a third party, the attorney for Schaffer's exhusband, not to a court upon its order. The court quoted with approval the case of Hammonds v. Aetna Casualty & Surety 639*639 Co., 243 F.Supp. 793 (N.D.Ohio 1965), wherein the Ohio District Court of Appeals stated that even if a plaintiff waived a testimonial privilege, it did not authorize a private conference between a doctor and opposing counsel because there is a "duty of secrecy" and a "duty of loyalty in litigation" which should not be breached. Id., 215 N.W.2d at 137. In reversing the trial court's granting of summary judgment, the Supreme Court of South Dakota concluded there was insufficient evidence that the privilege had been waived in this case. Id. at 137-38.

            There is evidence that South Carolina has a public policy in favor of maintaining the confidentiality of physician-patient relationships. In Hodge v. Shea, 252 S.C. 601, 168 S.E.2d 82 (1969), our Supreme Court stated that the physician-patient relationship is a confidential relationship.[6] Further, South Carolina's legislature has recognized a physician's duty to maintain confidences gained in the course of treatment and has empowered the State Board of Medical Examiners to discipline physicians for the unauthorized disclosure of patient confidences. See S.C.Code Ann. § 40-47-200 (Supp.1996); 26 S.C.Code Ann. Regs. 81-60(D) (Supp.1996). In Hedgepath, our Supreme Court ruled that Reg. 81-60(D) required a physician to maintain patient confidences within the limits of the law. Although Reg. 81-60(D) does not in itself create civil liability for an unauthorized disclosure, at least one court has found that such a provision unquestionably establishes a physician's duty of confidentiality. See Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527, 535 (1985) (en banc) (in which the Supreme Court of Oregon stated that the actionable wrong lies in the breach of duty in a confidential relationship, whereas a statute providing for the disciplining of a physician who divulges a professional secret "only establishes the duty of secrecy in the medical relationship."). The South Carolina legislature has also recently enacted the Physicians' Patient Records Act, S.C.Code Ann. §§ 44-115-10 to -150 (Supp. 1996), which prohibits a physician's disclosure of a patient's medical records without the patient's consent.

            640*640 We find the reasoning of the cases from other jurisdictions persuasive on this issue and today we join the majority and hold that an actionable tort[7] lies for a physician's breach of the duty to maintain the confidences of his or her patient in the absence of a compelling public interest or other justification for the disclosure.

Existence of Remedy for Invasion of Privacy

            In the order from the motion for reconsideration, the trial court rejected the common law tort of breach of confidence, explaining, "I do not tarry too long with concern because in my opinion any damages which might be recovered if such a cause of action existed can here be recovered in the invasion of privacy cause of action." Although there may be some overlap between the two, we find the existence of a cause of action for invasion of privacy should not preclude our recognition of an independent tort for a physician's breach of confidence because the actions are distinguishable.

            Invasion of privacy consists of the public disclosure of private facts about the plaintiff, and the gravamen of the tort is publicity as opposed to mere publication. The defendant must intentionally reveal facts which are of no legitimate public interest, as there is no right of privacy in public matters. In addition, the disclosure must be such as would be highly offensive and likely to cause serious mental injury to a person of ordinary sensibilities. Snakenberg v. Hartford Cas. Ins. Co., 299 S.C. 164, 383 S.E.2d 2 (Ct.App. 1989).

            Thus, an invasion of privacy claim narrowly proscribes the conduct to that which is "highly offensive" and "likely to cause serious mental injury." This standard is not consistent with the duty attaching to a confidential relationship because it focuses on the content, rather than the source 641*641 of the information. The unauthorized revelation of confidential medical information should be protected without regard to the degree of its offensiveness. The privacy standard would not protect information that happens to be very distressing to a particular patient, even though the individual would likely not have revealed it without the expectation of confidentiality. Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, supra, at 1441.

            Further, the requirement of "publicity" is a limitation which would preclude many cases involving a breach of confidentiality. Publicity involves disclosure to the public, not just an individual or a small group. Rycroft v. Gaddy, 281 S.C. 119, 314 S.E.2d 39 (Ct.App.1984). See also Swinton Creek Nursery v. Edisto Farm Credit, 326 S.C. 426, 483 S.E.2d 789 (Ct.App.1997) (a communication to an individual or even a small group does not give rise to liability unless there is some breach of contract, trust, or confidential relationship which will afford an independent basis for relief). However, where the information disclosed is received in confidence, "one can imagine many cases where the greatest injury results from disclosure to a single person, such as a spouse, or to a small group, such as an insurance company resisting a claim. A confidential relationship is breached if unauthorized disclosure is made to only one person not a party to the confidence, but the right of privacy does not cover such a case." Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, supra, at 1442. The Note distinguished invasion of privacy from an action for breach of confidentiality:

Privacy is a right against the public at large. Its doctrinal limits narrowly circumscribe the zone of proscribed conduct in order to prevent hindrance of public expression. In contrast, a right to confidentiality exists against a specific person, who, by virtue of his relationship to the confider, has notice of the duty to preserve the secrecy of clearly identifiable information. Privacy's doctrinal limits are thus unnecessary in breach-of-confidence situations, and should not bar recovery to plaintiffs deserving of a remedy.

Id. at 1440.

Limitations on Liability

            Although many jurisdictions recognize a cause of action for breach of the duty of confidentiality, they do not hold that this 642*642 duty is absolute. Public policy requires that where it is reasonably necessary to protect the interest of the patient or others, a physician may breach the duty to maintain patient confidentiality. The Utah Supreme Court explained, "Where life, safety, well-being or other important interest is in jeopardy, one having information which could protect against the hazard, may have a conditional privilege to reveal information for such a purpose...." Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814, 817-18 (1958). See also Mull v. String, 448 So.2d 952 (Ala.1984) (disclosure of patient information allowed when patient's health is at issue in litigation); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920) (disclosure of information about a highly contagious disease is privileged and not a breach of the duty of confidentiality). In Saur v. Probes, 190 Mich.App. 636, 476 N.W.2d 496, 499-500 (1991), the Michigan Court of Appeals found "[t]he issue whether the disclosures were reasonably necessary to protect the interests of [the] plaintiff or others is one for the jury [where] the facts are such that reasonable minds could differ." In Estate of Behringer v. Medical Center at Princeton, 249 N.J.Super. 597, 592 A.2d 1251, 1268-69 (Law Div.1991), the New Jersey court discussed a variety of exceptions to the duty of confidentiality.

            In South Carolina, our legislature has determined that, under certain circumstances, the public interest may demand disclosure of information gained by physicians in their professional capacity. See, e.g., S.C.Code Ann. § 20-7-510 (Supp. 1996) (physicians receiving information in their professional capacity that a child may have been physically or mentally abused or neglected must report the abuse); S.C.Code Ann. § 20-7-540 (Supp.1996) (providing persons required to report child abuse pursuant to § 20-7-510 are immune from civil and criminal liability which might otherwise result and that the person's good faith compliance is rebuttably presumed); S.C.Code Ann. § 20-7-550 (Supp.1996) (abrogating "[t]he privileged quality of communication" between any professional person and his or her patient for reports made regarding the abuse or neglect of children); S.C.Code Ann. § 44-29-146 (Supp.1996) (stating "[a] physician or state agency identifying and notifying a spouse or known contact of a person having... (HIV) infection or ... (AIDS) is not liable for damages resulting from the disclosure."). Statements that the physician 643*643 is "immune from civil ... liability" and "is not liable for damages resulting from the disclosure" constitutes an implicit recognition of liability for a physician's breach of the duty of confidentiality. See Brandt v. Medical Defense Assocs., 856 S.W.2d 667, 670 (Mo.1993) (en banc) ("By providing specific exemptions to the physician's fiduciary duty of confidentiality, these statutes implicitly acknowledge that, in the absence of such an exemption, there would be a breach of this duty....").

            Dr. England claims that in McCormick's attempt to establish a duty of physician-patient confidentiality she failed to recognize §§ 20-7-510 and -550. These statutes are only applicable to reports made to the county department of social services or to a law enforcement agency by persons required or permitted to report child abuse or neglect. The statutes do not directly provide immunity to a physician who writes a "To Whom It May Concern" letter that is submitted in a family court proceeding. It would exceed the legislative intent for this Court to extend these statutes to the disclosure in the present case. See Singletary v. South Carolina Dep't of Educ., 316 S.C. 153, 447 S.E.2d 231 (Ct.App.1994) (all rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the purpose of the statute).

            However, the public policy of protecting the welfare of children through disclosure by physicians and other professionals, as evidenced in §§ 20-7-510, -540 and -550, should be considered in deciding if Dr. England's disclosures were privileged from the duty of confidentiality. Because this claim for breach of confidence was decided on a motion to strike, the record is incomplete on whether the disclosure was necessary for the protection of the children and we make no comment in this regard. On remand, the court should consider whether under the circumstances Dr. England's disclosures were privileged.

CONCLUSION

            For the foregoing reasons, we hold South Carolina should recognize the common law tort of breach of a physician's duty of confidentiality. Patients have the right to be candid in 644*644 their disclosures of private information to their physicians without fearing this information will be disseminated throughout the community. However, this right is not absolute and must give way when disclosure is compelled by law or is in the best interest of the patient or others.

CHIN, J.

            Celebrities have a statutory right of publicity by which they can prohibit others from using their likeness. (Civ.Code, § 3344.) An obvious tension exists between this right of publicity and the First Amendment to the United States Constitution. (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 396, 106 Cal.Rptr.2d 126, 21 P.3d 797 (Comedy III).) In Comedy III, we considered when constitutional free speech rights may trump the statutory right of publicity. We formulated "what is essentially a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation." (Id. at p. 391, 106 Cal.Rptr.2d 126, 21 P.3d 797.) In that case, we concluded that lithographs and T-shirts bearing the likeness of The Three Stooges were not sufficiently transformative to receive First Amendment protection.

            In this case, we apply the same balancing test to comic books containing characters that evoke musician brothers Johnny and Edgar Winter. We conclude that, in contrast to a drawing of The Three Stooges, the comic books do contain significant creative elements that transform them into something more than mere celebrity likenesses. Accordingly, the comic books are entitled to First Amendment protection.

I. Facts and Procedural History

            In the 1990's, DC Comics published a five-volume comic miniseries featuring "Jonah Hex," a fictional comic book "antihero." The series contains an outlandish plot, involving giant worm-like creatures, singing cowboys, and the "Wilde West Ranch and Music and Culture Emporium," named for and patterned after the life of Oscar Wilde. The third volume ends with a reference to two new characters, the "Autumn brothers," and the teaser, "Next: The Autumns of Our Discontent." The cover of volume 4 depicts the Autumn brother characters, with pale faces and long white hair. (See append., post; the Autumn brothers are the two lower figures.) One brother wears a stovepipe hat and red sunglasses, and holds a rifle. The second has red eyes and holds a pistol. 638*638 This volume is entitled, Autumns of Our Discontent, and features brothers Johnny and Edgar Autumn, depicted as villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature that had escaped from a hole in the ground. At the end of volume 5, Jonah Hex and his companions shoot and kill the Autumn brothers in an underground gun battle.

            Plaintiffs, Johnny and Edgar Winter, well-known performing and recording musicians originally from Texas, sued DC Comics and others alleging several causes of action including, as relevant here, appropriation of their names and likenesses under Civil Code section 3344. They alleged that the defendants selected the names Johnny and Edgar Autumn to signal readers the Winter brothers were being portrayed; that the Autumn brothers were drawn with long white hair and albino features similar to plaintiffs'; that the Johnny Autumn character was depicted as wearing a tall black top hat similar to the one Johnny Winter often wore; and that the title of volume 4, Autumns of Our Discontent, refers to the famous Shakespearian phrase, "the winter of our discontent."[1] They also alleged that the comics falsely portrayed them as "vile, depraved, stupid, cowardly, subhuman individuals who engage in wanton acts of violence, murder and bestiality for pleasure and who should be killed."

            Defendants moved for summary judgment, partly relying on the First Amendment. The trial court granted summary judgment on all causes of action and entered judgment in defendants' favor. The Court of Appeal originally affirmed the judgment. We granted review and held the matter pending our decision in Comedy III, supra, 25 Cal.4th 387, 106 Cal. Rptr.2d 126, 21 P.3d 797. Later, we remanded the matter for the Court of Appeal to reconsider its decision in light of Comedy III. This time, the Court of Appeal affirmed the summary adjudication of all causes of action other than the one for misappropriation of likeness. On the misappropriation cause of action, the court concluded that triable issues of fact exist whether or not the comic books are entitled to protection under the test adopted in Comedy III. It reversed the judgment and remanded for further proceedings on that cause of action.

            We granted the defendants' petition for review to decide whether the comic books are protected under the Comedy III transformative test.

II. Discussion

            Civil Code section 3344 provides as relevant: "(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent ... shall be liable for any damages sustained by the person or persons injured as a result thereof."

            In Comedy III, supra, 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797, the registered owner of all rights to the former comedy act known as The Three Stooges sued an artist who, without permission, sold lithographs and T-shirts bearing a likeness of The Three Stooges reproduced from a charcoal drawing the artist had made.[2] We noted that the right of publicity 639*639 threatens two purposes of the First Amendment: (1) preserving an uninhibited marketplace of ideas; and (2) furthering the individual right of self-expression. "Because celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and values. And because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression." (Comedy III, supra, at p. 397, 106 Cal.Rptr.2d 126, 21 P.3d 797.) "[T]he very importance of celebrities in society means that the right of publicity has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity's meaning. [Citations.] ... `The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment.'" (Ibid., quoting with approval Guglielmi v. Spelling-Goldberg productions (1979) 25 Cal.3d 860, 869, 160 Cal.Rptr. 352, 603 P.2d 454 (cone. opn. of Bird, C.J.).)

            Accordingly, we held that some, although not all, uses of celebrity likenesses are entitled to First Amendment protection. "When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist." (Comedy III, supra, 25 Cal.4th at p. 405, 106 Cal.Rptr.2d 126, 21 P.3d 797, fn. omitted.) Thus, "depictions of celebrities amounting to little more than the appropriation of the celebrity's economic value are not protected expression under the First Amendment." (Id. at p. 400, 106 Cal.Rptr.2d 126, 21 P.3d 797.) "The right-of-publicity holder [may still] enforce the right to monopolize the production of conventional, more or less fungible, images of the celebrity." (Id. at p. 405, 106 Cal.Rptr.2d 126, 21 P.3d 797.) "On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity.... [W]orks of parody or other distortions of the celebrity figure are not, from the celebrity fan's viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect." (Ibid.)

            We developed a test to determine whether a work merely appropriates a celebrity's economic value, and thus is not entitled to First Amendment protection, or has been transformed into a creative product that the First Amendment protects. The "inquiry is whether the celebrity likeness is one of the `raw materials' from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a product containing a celebrity's likeness is so transformed 640*640 that it has become primarily the defendant's own expression rather than the celebrity's likeness. And when we use the word `expression,' we mean expression of something other than the likeness of the celebrity." (Comedy III, supra, 25 Cal.4th at p. 406, 106 Cal.Rptr.2d 126, 21 P.3d 797.) These "transformative elements or creative contributions that require First Amendment protection are not confined to parody and can take many forms, from factual reporting [citation] to fictionalized portrayal [citations], from heavyhanded lampooning [citation] to subtle social criticism [citation]." (Ibid.) "[A]n artist depicting a celebrity must contribute something more than a `"`merely trivial'" variation, [but must create] something recognizably "`his own'"' [citation], in order to qualify for legal protection." (Id. at p. 408, 106 Cal.Rptr.2d 126, 21 P.3d 797.) "[W]hen an artist's skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist's right of free expression is outweighed by the right of publicity." (Ibid.)

            We made two important cautionary observations. First, "the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity's image by censoring disagreeable portrayals. Once the celebrity thrusts himself or herself forward into the limelight, the First Amendment dictates that the right to comment on, parody, lampoon, and make other expressive uses of the celebrity image must be given broad scope. The necessary implication of this observation is that the right of publicity is essentially an economic right. What the right of publicity holder possesses is not a right of censorship, but a right to prevent others from misappropriating the economic value generated by the celebrity's fame through the merchandising of the `name, voice, signature, photograph, or likeness' of the celebrity. [Citation.]" (Comedy III, supra, 25 Cal.4th at p. 403, 106 Cal.Rptr.2d 126, 21 P.3d 797.) Second, "in determining whether the work is transformative, courts are not to be concerned with the quality of the artistic contribution—vulgar forms of expression fully qualify for First Amendment protection. [Citations.] On the other hand, a literal depiction of a celebrity, even if accomplished with great skill, may still be subject to a right of publicity challenge. The inquiry is in a sense more quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate in the work." (Id. at p. 407, 106 Cal.Rptr.2d 126, 21 P.3d 797.)

            We also cautioned against "wholesale importation of the fair use doctrine [of copyright law] into right of publicity law," although it provides some guidance. (Comedy III, supra, 25 Cal.4th at p. 404, 106 Cal.Rptr.2d 126, 21 P.3d 797.) We explained that one factor of the fair use test, "`the effect of the use upon the potential market for or value of the copyrighted work' (17 U.S.C. § 107(4)), ... bears directly on this question. We do not believe, however, that consideration of this factor would usefully supplement the test articulated here. If it is determined that a work is worthy of First Amendment protection because added creative elements significantly transform the celebrity depiction, then independent inquiry into whether or not that work is cutting into the market for the celebrity's images ... appears to be irrelevant." (Id. at p. 405, fn. 10, 106 Cal.Rptr.2d 126, 21 P.3d 797.) Moreover, we explained that even if the work's marketability and economic value derive primarily from the fame of the celebrity depicted, the work may still be transformative and entitled to First Amendment protection. However, if the 641*641 marketability and economic value of the challenged work do not derive primarily from the celebrity's fame, "there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity—from the creativity, skill, and reputation of the artist—it may be presumed that sufficient transformative elements are present to warrant First Amendment protection." (Id. at p. 407, 106 Cal.Rptr.2d 126, 21 P.3d 797.)

            We then summarized the rule. "In sum, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as [an] affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame." (Comedy III, supra, 25 Cal.4th at p. 407, 106 Cal.Rptr.2d 126, 21 P.3d 797.)

            In applying this test in Comedy III itself, we viewed the work in question and concluded that the right of publicity prevailed. We could "discern no significant transformative or creative contribution. [The artist's] undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame. Indeed, were we to decide that [the artist's] depictions were protected by the First Amendment, we cannot perceive how the right of publicity would remain a viable right other than in cases of falsified celebrity endorsements. [¶] Moreover, the marketability and economic value of [the artist's] work derives primarily from the fame of the celebrities depicted. While that fact alone does not necessarily mean the work receives no First Amendment protection, we can perceive no transformative elements in [the] works that would require such protection." (Comedy III, supra, 25 Cal.4th at p. 409, 106 Cal. Rptr.2d 126, 21 P.3d 797.)

            Application of the test to this case is not difficult. We have reviewed the comic books and attach a copy of a representative page. We can readily ascertain that they are not just conventional depictions of plaintiffs but contain significant expressive content other than plaintiffs' mere likenesses. Although the fictional characters Johnny and Edgar Autumn are less-than-subtle evocations of Johnny and Edgar Winter, the books do not depict plaintiffs literally. Instead, plaintiffs are merely part of the raw materials from which the comic books were synthesized. To the extent the drawings of the Autumn brothers resemble plaintiffs at all, they are distorted for purposes of lampoon, parody, or caricature. And the Autumn brothers are but cartoon characters—half-human and half-worm—in a larger story, which is itself quite expressive. The characters and their portrayals do not greatly threaten plaintiffs' right of publicity. Plaintiffs' fans who want to purchase pictures of them would find the drawings of the Autumn brothers unsatisfactory as a substitute for conventional depictions. The comic books are similar to the trading cards caricaturing and parodying prominent baseball players that have received First Amendment protection. (Cardtoons v. Major League Baseball Players (10th Cir. 1996) 95 F.3d 959, discussed in Comedy III, supra, 25 Cal.4th at p. 406, 106 Cal. Rptr.2d 126, 21 P.3d 797.) Like the trading cards, the comic books "`are no less protected because they provide humorous rather than serious commentary.'" (Comedy III, supra, at p. 406, 106 Cal.Rptr.2d 126, 21 P.3d 797, quoting Cardtoons v. Major League Baseball Players, supra, at p. 969.)

            Citing Dr. Seuss Enterprises, L.P. v. Penguin Books (9th Cir.1997) 109 642*642 F.3d 1394, plaintiffs argue, and the Court of Appeal agreed, that the comic books do not technically qualify as parody of plaintiffs (although the Court of Appeal found they may qualify as parody of Jonah Hex). That case, however, involved alleged copyright and trademark infringement, allegations not involved here. Comedy III did not adopt copyright law wholesale. (Comedy III, supra, 25 Cal.4th at p. 404, 106 Cal.Rptr.2d 126, 21 P.3d 797.) The distinction between parody and other forms of literary expression is irrelevant to the Comedy III transformative test. It does not matter what precise literary category the work falls into. What matters is whether the work is transformative, not whether it is parody or satire or caricature or serious social commentary or any other specific form of expression.

            Plaintiffs also argue, and the Court of Appeal found, that the record contains evidence that defendants were trading on plaintiffs' likenesses and reputations to generate interest in the comic book series and increase sales. This, too, is irrelevant to whether the comic books are constitutionally protected. The question is whether the work is transformative, not how it is marketed. If the work is sufficiently transformative to receive legal protection, "it is of no moment that the advertisements may have increased the profitability of the [work]." (Guglielmi v. Spelling-Goldberg Productions, supra, 25 Cal.3d at p. 873, 160 Cal.Rptr. 352, 603 P.2d 454 (cone. opn. of Bird, C.J.).) If the challenged work is transformative, the way it is advertised cannot somehow make it nontransformative. Here, as we have explained, the comic books are transformative and entitled to First Amendment protection.[3]

            Accordingly, we conclude that the Court of Appeal erred in finding the existence of triable issues of fact. "[B]ecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable." (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685, 150 Cal.Rptr. 258, 586 P.2d 572; see also Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 269, 228 Cal. Rptr. 206, 721 P.2d 87; Aisenson v. American Broadcasting Co. (1990) 220 Cal. App.3d 146, 154, 269 Cal.Rptr. 379.) As in Comedy III, supra, 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797, courts can often resolve the question as a matter of law simply by viewing the work in question and, if necessary, comparing it to an actual likeness of the person or persons portrayed. Because of these circumstances, an action presenting this issue is often properly resolved on summary judgment or, if the complaint includes the work in question, even demurrer. This is one of those cases.

III. Conclusion

            The artist in Comedy III, supra, 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797, essentially sold, and devoted fans bought, pictures of The Three Stooges, not transformed expressive works by the artist. Here, by contrast, defendants essentially sold, and the buyers purchased, DC Comics depicting fanciful, creative characters, 643*643 not pictures of the Winter brothers. This makes all the difference. The comic books here are entitled to First Amendment protection.

            Accordingly, we reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with our opinion.

WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, BROWN and MORENO, JJ.

644*644

            [1] "Now is the winter of our discontent/Made glorious summer by this sun of York." (Shakespeare, Richard III, act I, scene 1, lines 1-2.) The phrase was also popularized by the John Steinbeck novel, The Winter of Our Discontent (1961).

            [2] Comedy III, supra, 25 Cal.4th 387, 106 Cal. Rptr.2d 126, 21 P.3d 797, involved the celebrities' successor in interest suing under Civil Code former section 990 (now Civ.Code, § 3344.1), rather than the celebrities themselves suing under Civil Code section 3344. (See Comedy III, supra, at p. 391 & fn. 1, 106 Cal.Rptr.2d 126, 21 P.3d 797.) But, because similar First Amendment concerns exist under both provisions, the test we developed in that case applies equally to claims under Civil Code section 3344.

            [3] Plaintiffs also claim that the way the comic books were advertised is itself actionable, for example, by falsely implying plaintiffs endorsed the product. (See Comedy III, supra, 25 Cal.4th at p. 396, 106 Cal.Rptr.2d 126, 21 P.3d 797.) This question is beyond the scope of our grant of review and the Court of Appeal's opinion, which focused on whether the comic books are constitutionally protected. We leave it to the Court of Appeal on remand to decide whether plaintiffs have preserved a cause of action based solely on the advertising and, if so, whether that cause of action is susceptible to summary adjudication.