                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2005

Bowley v. City Uniontown Pol
Precedential or Non-Precedential: Precedential

Docket No. 04-2352




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Recommended Citation
"Bowley v. City Uniontown Pol" (2005). 2005 Decisions. Paper 1269.
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                                             PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                        No. 04-2352


                   JAMES L. BOWLEY

                             v.

    CITY OF UNIONTOWN POLICE DEPARTMENT;
     HERALD STANDARD; CITY OF UNIONTOWN,
   a municipal corporation; OFFICER FRED BALSLEY,
      individually and in his capacity as a police officer

          JAMES L. BOWLEY, a minor, by and
         through, JAMES C. BOWLEY, guardian
               ad litem, his natural father,
                                      Appellant




      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                  (D.C. No. 03-cv-01144)
          District Judge: Honorable Joy F. Conti




                   Argued March 8, 2005

Before: NYGAARD, McKEE, and RENDELL, Circuit Judges.

                   (Filed: April 26, 2005)
Peter M. Suwak, Esq. (Argued)
P. O. Box 1
Pete’s Surplus Building
Washington, PA 15301
       Counsel for Appellant

Charles Kelly, Esq. (Argued)
Kristin L. Anders, Esq.
Sinclair, Kelly, Jackson, Reinhart & Hayden
501 Corporate Drive
Suite 200
Canonsburg, PA 15317
       Counsel for Appellee

                              _____

                  OPINION OF THE COURT


NYGAARD, Circuit Judge.

       This case arises from Appellant James L. Bowley’s arrest

for allegedly raping a minor while a minor himself, and the

subsequent truthful publication of the fact of that arrest by

Appellee Uniontown Herald Standard.           As a result of the

publication, Bowley sued the Herald Standard for a violation of the

Pennsylvania statute prohibiting the disclosure of juvenile law

enforcement records and for the tort of invasion of privacy. We

must now decide whether imposition of civil liability upon the

Herald Standard for its actions with regard to Bowley would be

consistent with the First Amendment. The District Court held that

                                2
it would not and granted the Herald Standard’s motion to dismiss.

Because we agree that under these facts, the First Amendment

provides the Herald Standard with a shield from liability, we will

affirm.

                                  I.

          The Herald Standard published an article reporting that

Bowley, a minor, had been arrested for allegedly raping a seven-

year-old girl he was babysitting. In its entirety, the article stated:

                 City police arrested James Landon Bowley,
          15, of Farmington Sunday on charges he allegedly
          raped a 7-year-old girl he was babysitting at her
          Uniontown home Friday evening.
                 According to police, the girl’s mother took
          her daughter to Uniontown Hospital after the girl
          complained of injury and bleeding Sunday afternoon.
                 Bowley turned himself in to police Sunday at
          5:45 p.m. and was charged with two counts of rape
          and one count each of indecent assault, involuntary
          deviate sexual intercourse and indecent exposure.
          Charges against Bowley were filed at the
          Connellsville Juvenile Detention Facility, where he
          is being held, police said.1

(App. at 30a). According to Bowley, the Herald Standard received

the information concerning his arrest from Uniontown Police

Officer Fred Balsley.



          1
       Although unclear from the record, it does not appear that
Bowley was actually prosecuted.

                                  3
       After seeing the report of his arrest in the newspaper,

Bowley brought suit in the Court of Common Pleas of Fayette

County, Pennsylvania against the Herald Standard, the City of

Uniontown, the City of Uniontown Police Department, and

Balsley.2 He alleged that the release of the fact and details of his

arrest to the Herald Standard, and the subsequent publication of

that information by the Herald Standard, violated his rights under

both state and federal law. Against the Herald Standard, Bowley

brought claims for breach of confidentiality in violation of 42 P A.

C ONS. S TAT. § 6308, which generally prohibits the disclosure of

juvenile law enforcement records, and for the tort of invasion of

privacy. Against all other Defendants, Bowley brought these state-

law claims in addition to a claim under 42 U.S.C. § 1983 for

violation of his civil rights.

       Because there was a federal claim, Defendants removed the

case to the Western District of Pennsylvania. The Herald Standard

then filed a motion to dismiss for failure to state a claim. The

District Court, relying on the Report and Recommendation from



       2
        At the time the case was filed, Bowley, born on November
17, 1985, was a minor. Thus, he brought the case through James
C. Bowley, his father and guardian ad litem.

                                 4
the Magistrate Judge, granted that motion. Because Bowley has

since settled with the remaining Defendants and stipulated to a

voluntary dismissal of his claims against them, the District Court’s

grant of the motion to dismiss is a final order, which we have

jurisdiction to review pursuant to 28 U.S.C. § 1291.

                                  II.

       We exercise plenary review over the grant of a motion to

dismiss. Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993).

We must accept as true all factual allegations in the complaint

and draw all reasonable inferences in the light most favorable to

the plaintiff. Id. Only if it is certain that no relief could be

granted under the facts pleaded may we affirm. Id.

                                 III.

       As explained, Bowley has stated two claims against the

Herald Standard, each stemming from the publication of

information concerning his arrest. He first claims a breach of

confidentiality in violation of 42 P A. C ONS. S TAT. § 6308.3 He



       3
        Section 6308 of Pennsylvania’s Judicial Code provides in
relevant part:

       The contents of law enforcement records and files
       concerning a child shall not be disclosed to the

                                  5
also claims a tortious invasion of his privacy. The Herald

Standard argues that the breach of confidentiality claim is not

cognizable under Pennsylvania law and that Bowley cannot

establish each element of the invasion of privacy claim. It

argues in addition, that the First Amendment shields it from civil

liability for publishing the article, which contained truthful

information received from the police. We agree with the Herald

Standard that the First Amendment shields it from liability on

these facts.4

       There no doubt exists a tension between the First

Amendment right to a free press and an individual’s statutory

and common law right to privacy, complicated here because the

individual in question is a juvenile. It is a tension the Supreme

Court has had several occasions to address. See Florida Star v.


       public except if the child is 14 or more years of age
       at the time of the alleged conduct and if any of the
       following apply:

       (i) The child has been adjudicated delinquent by a
       court . . . [or]
       (ii) A petition alleging delinquency has been filed by
       a law enforcement agency . . .
       4
         For that reason we need resolve the questions of state law
before us. In particular, we need not decide whether 42 P A. C ONS.
S TAT. § 6308 creates a cause of action under Pennsylvania law.

                                 6
B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publ’g, 443

U.S. 97 (1979); Oklahoma Publ’g Co. v. Oklahoma County Dist.

Ct., 430 U.S. 308 (1977); Cox Broad. Corp. v. Cohn, 420 U.S.

469 (1975). While the Court has upheld a newspaper’s right to

publish in each of these cases, it has been careful to decide each

upon its discrete facts, Florida Star, 491 U.S. at 530, and has

declined to hold that publication of truthful information is per se

protected by the First Amendment, id. at 532. Nevertheless, the

Court has made clear that as a general matter, “state action to

punish the publication of truthful information seldom can satisfy

constitutional standards.” Daily Mail Publ’g, 443 U.S. at 102.

In fact, it has held that “‘if 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.’” Florida Star, 491 U.S. at 533 (quoting Daily

Mail Publ’g, 443 U.S. at 103). A newspaper, moreover, may be

punished consistent with the Constitution only when the

punishment is narrowly tailored to serve the purported state

interest. Florida Star, 491 U.S. at 541. Thus, in order to



                                 7
determine whether the First Amendment permits the imposition

of civil liability upon the Herald Standard for publishing the

article concerning Bowley’s arrest, we must consider: (A)

whether the information was truthful and lawfully obtained; (B)

whether the information concerned a matter of public

significance; and (C) whether the imposition of liability would

be the most narrowly tailored way to serve a state interest of the

highest order.

       Although the truthfulness of the article is not in dispute,

the parties disagree as to whether other aspects of this test have

been satisfied. They disagree as to whether the Herald Standard

lawfully obtained information concerning Bowley’s arrest. They

disagree as to whether Bowley’s arrest is a matter of public

significance. And they disagree, finally, as to whether protecting

the anonymity of an arrested juvenile is a need of the “highest

order.” We address each of these disputes in turn.

                                A.

       Bowley contends that absent discovery, it is unclear

whether the Herald Standard lawfully obtained the information

in the article. Thus, he asserts, the case should be remanded. In



                                 8
light of the allegations in the Complaint, however, Bowley can

prove no set of facts establishing that the Herald Standard

obtained the information unlawfully.

       According to the Complaint, Officer Balsley informed the

Herald Standard of Bowley’s arrest. (App. at 13a). Although

Balsley violated Pennsylvania law prohibiting the release of

juvenile arrest records by doing so, see 42 P A. C ONS. S TAT. §

6308, his unlawful release of the information does not make

receipt of that information by the Herald Standard unlawful.

Section 6308 prohibits only the disclosure of juvenile law

enforcement information, not the receipt of such information.5

See id. (“The contents of law enforcement records and files

concerning a child shall not be disclosed to the public. . . .”)

(emphasis added); cf. Florida Star, 491 U.S. at 536 (“Even

assuming the Constitution permitted a State to proscribe receipt

of information, Florida has not taken this step. . . .”).

       Moreover, the Supreme Court held in Florida Star that




       5
         For the purposes of the First Amendment, whether the
Herald Standard’s subsequent disclosure of the information
violated section 6308 is irrelevant to the question of whether the
newspaper lawfully obtained the information it disclosed.

                                  9
failure by the police to comply with a Florida statute prohibiting

the release of a rape victim’s name did not render unlawful a

newspaper’s resultant receipt of the protected information. 491

U.S. at 536. The Court explained, “[n]or does the fact that the

Department apparently failed to fulfill its obligation under . . .

[the non-disclosure statute] make the newspaper’s ensuing

receipt of this information unlawful.” Id. The Court reiterated

this sentiment in Bartnicki v. Vopper, 532 U.S. 514, 535 (2001),

holding: “a stranger’s illegal conduct does not suffice to remove

the First Amendment shield from speech about a matter of public

concern.” Similarly in the case before us, Balsley’s failure to

comply with section 6308 does not render the Herald Standard’s

subsequent receipt of the information unlawful. Bowley,

therefore, cannot prove that the Herald Standard unlawfully

obtained the information at issue under the facts alleged.

                                 B.

       The fact of Bowley’s arrest is a matter of public concern.6

       6
         We recognize, however, that there might be cases where
the details of the crime, as opposed to its mere occurrence, would
not necessarily be of public concern. See e.g., Foretich v. Lifetime
Cable, 777 F. Supp. 47, 50 (D.D.C. 1991) (“The Court
acknowledges that the sexual abuse of children is an issue worthy
of public attention, but it does not believe as a matter of law, that

                                 10
In Florida Star, the Supreme Court held that the commission and

investigation of violent crimes—in that case like in this one,

rape—are matters of “paramount public import.” 491 U.S. at

536–37; accord Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

492 (1975) (“The commission of crime, prosecutions from it,

and judicial proceedings arising from the prosecutions . . . are

without question events of legitimate concern to the public. . .

.”). The rape of a minor is a crime of violence. Bowley’s arrest

for allegedly committing that crime is within the realm of

legitimate public concern.7 Although this case is somewhat

complicated by the fact that the alleged offender was himself a

minor, we think the legitimacy of public concern regarding the

rape of a minor cannot seriously be doubted, regardless of the



the specific facts about the alleged abuse of this one particular
child [ ] as described by the child on the videotape in question are
of legitimate public concern.”).
        7
           Incidentally, it is for this reason that Bowley’s claim for
invasion of privacy fails. Although the tort of invasion of privacy
is actually four distinct torts, only one is presently at issue: publicity
given to private life. Under Pennsylvania law, the elements of this tort
are: 1) giving publicity; 2) to private facts; 3) of a kind highly offensive
to a reasonable person; and 4) which are not of legitimate concern to the
public. Jenkins v. Bolla, 600 A.2d 1293, 1296 (Pa. Super. Ct. 1992)
(emphasis added). As explained in the text, Bowley’s arrest is of
legitimate public concern. Thus, he cannot establish the elements of his
invasion of privacy claim.

                                    11
age of the accused.

                                 C.

       Because the information published by the Herald

Standard was truthful, lawfully obtained, and concerning a

matter of public significance, the First Amendment shields the

Herald Standard from civil liability unless the imposition of

liability is narrowly tailored to serve an interest of the highest

order. Even if, as Bowley asserts, protecting the anonymity of

an arrested juvenile is an interest of the highest order, under the

facts of this case, we hold that subjecting the Herald Standard to

civil liability is not the most narrowly tailored means of serving

that interest.

       The Supreme Court has held that when the government

itself inappropriately releases otherwise-confidential information

“the imposition of damages against the press for its subsequent

publication can hardly be said to be a narrowly tailored means of

safeguarding anonymity.” 8 Florida Star, 491 U.S. at 538.

Indeed, when the government has stewardship over confidential



       8
          The anonymity to be protected in that case was that of a
rape victim. However, the same rationale applies with equal force
to the anonymity of the alleged offender.

                                 12
information, not releasing the information to the media in the

first place will more narrowly serve the interest of preserving

confidentiality than will punishing the publication of the

information once inappropriately released. See id. Because it is

alleged in the Complaint, we assume that Balsley, a government

employee, provided the Herald Standard with the information in

the article, in violation of section 6308's non-disclosure

requirement. Accordingly, imposing civil liability upon the

Herald Standard is not the most narrowly tailored way to protect

Bowley’s anonymity. Rather, it would have been far less drastic

for Balsley to have simply not disclosed the information.

                                D.

       A newspaper may not be held liable for its publication of

lawfully obtained, truthful information on a matter of public

significance unless imposing liability would be the most

narrowly tailored means of serving a state interest of the highest

order. Id. at 541. The information contained in the article

published by the Herald Standard was truthful, lawfully

obtained, and concerned a matter of public significance. We

need not decide whether protecting the anonymity of juvenile



                                13
offenders is a state interest of the highest order, because when

the government is ultimately responsible for the disclosure of

information, imposing civil liability upon a newspaper for the

subsequent publication of that information is not the most

narrowly tailored means of serving any purported interest.

Bowley, therefore, cannot seek civil damages against the Herald

Standard consistent with the First Amendment. He must instead

rest his hopes for restitution “upon the willingness of the

government to compensate victims for their loss of privacy”

stemming from the government’s inappropriate release of

confidential information. Id. at 538.

                                IV.

       Bowley cannot maintain his action against the Herald

Standard consistent with the First Amendment. We will affirm

the District Court’s grant of the Herald Standard’s motion to

dismiss.




                                14
