410 F.2d 701 (D.C. Cir. 1969)
This case arises out of the exposure of the alleged misdeeds of Senator Thomas Dodd of Connecticut by newspaper columnists Drew Pearson and Jack Anderson.1 On several occasions in June and July, 1965, two former employees of the plaintiff, at times with the assistance of two members of the plaintiff’s staff, entered the plaintiff’s office without authority and unbeknownst to him.
They removed numerous documents from his files, made copies of them, replaced the originals, and turned over the copies to the defendant Anderson, who was aware of the manner in which the copies had been obtained.2 The defendants Pearson and Anderson thereafter published articles containing information gleaned from these documents.3 The columns gave appellants’ version of appellee’s relationship with lobbyists for foreign interests, and gave an interpretive biographical sketch of appellee’s public career.4
The District Court has granted partial summary judgment to Senator Dodd, appellee here, finding liability on a theory of conversion.5 At the same time, the court denied partial summary judgment on the theory of invasion of privacy.6 Both branches of the court’s judgment are before us on interlocutory appeal.7
The court certified its order for interlocutory appeal under 28 U.S.C. § 1292(b) (1964).8 We denied appellee’s motion, while granting that of appellants. Our order granting appellants’ motion specified that the privacy as well as the conversion question should be briefed.9 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.10
Whether the columnists' receipt of copies of documents removed without authorization from Senator Dodd's files and their subsequent publication of information from those documents constituted an invasion of privacy?11
The tort of invasion of privacy by intrusion requires improper intrusion by the defendant into spheres from which an ordinary person in the plaintiff's position could reasonably expect exclusion.12 The tort is completed upon obtaining the information by such means.13 Mere receipt of information known to have been obtained by others' intrusion does not establish liability.14 Publication of matters of legitimate public interest concerning a public official's qualifications is not actionable as invasion of privacy.15
No. The undisputed facts established only that Pearson and Anderson received copies of the documents knowing they had been removed without authorization, without any showing that they aided or abetted the removal itself.16 The columns complained of here gave appellants’ version of appellee’s relationship with lobbyists for foreign interests, and gave an interpretive biographical sketch of appellee’s public career.17 These matters bore on appellee’s qualifications as a United States Senator, and as such amounted to a paradigm example of published speech not subject to suit for invasion of privacy.18 Since we have also concluded that appellants’ role in obtaining the information did not make them liable to appellee for intrusion, their subsequent publication, itself no invasion of privacy, cannot reach back to render that role tortious.19
The columnists' receipt and publication did not constitute an invasion of privacy.20
Related opinions on this issue
Circuit Judge Tamm concurred in the disposition of the case.21 He observed that conduct for which a law enforcement officer would be soundly castigated is, by the phraseology of the majority opinion, found tolerable.22 Conduct which, if engaged in by government agents would lead to the suppression of evidence obtained by these means, is approved when used for the profit of the press.23
There is an anomaly lurking in this situation: the news media regard themselves as quasi-public institutions yet they demand immunity from the restraints which they vigorously demand be placed on government.24 Some will find this confusing, but I am not free to act on my own views under the doctrine of stare decisis which I consider binding upon me.25 Our review is confined to a limited area, compressed by the amended complaint, restricted by stipulations, and curbed by our consideration only of the propriety of the trial court’s action upon a motion for summary judgment.26
Whether the columnists' receipt and use of photocopies of documents removed without authorization from Senator Dodd's files established liability for conversion?27
Conversion requires an intentional exercise of dominion or control over a chattel.28 This exercise must so seriously interfere with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.29 Less serious interferences constitute only trespass to chattels.30 Information or ideas are not subject to conversion unless they constitute literary property, scientific invention, or a secret commodity held for sale.31
No. Those documents were removed from the files at night, photocopied, and returned to the files undamaged before office operations resumed in the morning.32 Insofar as the documents’ value to appellee resided in their usefulness as records of the business of his office, appellee was clearly not substantially deprived of his use of them.33 The information included the contents of letters to appellee from supplicants, and office records of other kinds, the nature of which is not fully revealed by the record.34 Insofar as we can tell, none of it amounts to literary property, to scientific invention, or to secret plans formulated by appellee for the conduct of commerce.35
Nor does it appear to be information held in any way for sale by appellee, analogous to the fresh news copy produced by a wire service.36 Because no conversion of the physical contents of appellee’s files took place, and because the information copied from the documents in those files has not been shown to be property subject to protection by suit for conversion, the District Court’s ruling that appellants are guilty of conversion must be reversed.
The columnists' receipt and use of the photocopies did not establish liability for conversion.37