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Shelia Ann Cox, Susan Keller and Susan Smith V. Orrin Hatch, Union

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Shelia Ann Cox, Susan Keller and Susan Smith V. Orrin Hatch, Union Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs (1965 –) 1983 Shelia Ann Cox, Susan Keller And Susan Smith v. Orrin Hatch, Union Members For Hatch Committee, Friends For Orrin Hatch Committee, Hatch Election Committee, Michael Leavitt And John Does I-X : Answering Brief of Respondents Follow this and additional works at: https://digitalcommons.law.byu.edu/uofu_sc2 Original Brief submitted to the Utah Supreme Court; funding for digitization provided by the Institute of Museum and Library Services through the Library Services and Technology Act, administered by the Utah State Library, and sponsored by the S.J. Quinney Law Library; machine- generated OCR, may contain errors.Robert S. Campbell, Jr. and Richard B. Ferrari; Attorneys for Respondents Recommended Citation Reply Brief, Cox v. Hatch, No. 19257 (1983). https://digitalcommons.law.byu.edu/uofu_sc2/4177 This Reply Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs (1965 –) by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. IN THE SUPREME COURT OF THE STATE OF UTAH 111: I LA ANN COX, SUSAN KELLER a11d SUSAN SMITH, Plaintiffs-Appellants, Appeal No. 19257 vs. OFRIN G. HATCH, UNION MEMBERS FCJR HATCH COMMITTEE, FRIENDS F"UR ORRIN HATCH COMMITTEE, HATCH ELECTION COMMITTEE, MICHAEL LEAVITT AND JOHN DOES I-X, Defendants-Respondents. ANSWERING BRIEF OF RESPONDENTS On Appeal from the District Court of Salt Lake County HONORABLE TIMOTHY R. HANSON, District Judge ROBERT S. CAMPBELL, JR. RICHARD B. FERRARI of BRIAN M. BARNARD WATKISS & CAMPBELL 310 South Main, Suite 1200 DEBRA ,J. MOORE 214 East Fifth South Salt Lake City, Utah 84101 Salt Lake City, Utah 84111 Attorneys for Respondents Orrin G. Hatch and Michael A. HOWARD LUNDGREN ANDREA C. ALCABE Leavitt The Judge Building #313 No. 8 East Broadway Silt Lake City, Utah 84111 Attorneys for Appellants D 11i:L: i.1 i9~J ~-----------~ Cbrl. c~;.i~) Cj:.-l, ~..lbS ,.,..- TABLE OF CONTENTS Page ;JT\Tlcl' C <JF (/\SE ......................................... l uJSI'OSlTION OF CASE IN LOWER COURT ..................... 2 Pi'J,1CF SOUGHT ON APPEAL ............................... ISSUES PRESENTED ON APPEAL ............................. 3 STATEMENT OF FACTS AND CASE ............................ 3 1. The Hatch Political Flyer ..................... 4 L. The Complaint of Cox, Keller and Smith ........ 5 3. Dismissal Order of District Court ............. 6 TllZGllMENT. 7 POINT I. THE AMENDED COMPLAINT SOUGHT RELIEF WHICH WOULD HAVE IMPER- MISSIBLY "CHILLED" FREE SPEECH UNDER THE FIRST AMENDMENT, AND IT WAS PROPERLY DISMISSED ............. 7 1. The Amended Complaint Raises Respondents' Federal Constitutional Rights of Free Speech .................... 7 2. Political Campaign Literature is the Most Protected Form of Free Speech Under the First Amendment................ 8 3. Appellants' Position is a Dangerous Threat to First Amendment Rights ......... 11 4. Plaintiffs' Claim, if Permitted to Stand, Would Chill Speech ................ 14 POINT II. THE UTAH ABUSE OF PERSONAL IDENTITY STATUTE HAS NO APPLICATION TO POLITICAL EXPRESSION UNDER THE FIRST AMENDMENT. 16 The Application of the Utah Statute .......... 18 ( i) TABLE OF CONTENTS - Continued POINT III. APPELLANTS' CLAIM THAT THEY ARE EXEMPT FROM FIRST AMENDMENT RESTRICTIONS IS DEVOID OF SUPPORTING AUTHORITY .................. 19 POINT IV. THE DISTRICT COURT HAD AVAILABLE TO IT OTHER, ALTERNATIVE GROUNDS FOR DISMISSAL ......................... 25 1. The Facts Alleged by the Amended Complaint did not amount to a Claim upon which Relief could be Granted under the Abuse of Personal Identity Act. 2 S (a) Appellants' claim is based upon an unsupportable inference .......... 26 (b) Appellants' claim is based upon a mere incidental use of their photograph, which is not actionable under the Abuse of Identity Act ..... 28 2. The Amended Complaint did not Allege the Elements of an Action for Defamation. 30 3. The Amended Complaint does not Allege the Elements of a Claim for Invasion of Privacy ............................... 32 CONCLUSION ............................................. 34 (ii) INDEX OF AUTHORITIES Page r-.rr1nqton v. New York Times Co., 449 N.Y.S. 2d 941, 434 N.E. 2d 1319 (1982) ...................• 33 ~cggctt v. Bullitt, 377 U.S. 360, (1964) ................ 14 H1:.zl1af v. FCC, 405 F.2d 1082, (D.C. Cir. 1968), cert. denied sub nom ........................ 11 BcJtes v. State Bar of Arizona, 433 U.S. 350 - (1977) ............................................. 8 Blount v. TD Publishing Corporation, 77 N.M. 384, 423 P.2d 421 11966) ................................ 34 llranzburg v. Hayc>s, 408 U.S. 665 (1972) ..........•...... 21.22 Buckley v. Valeo, 424 U.S. 1, 52-53 (1976) .............. 9,18,21,24 Campbell v. Seaburg Press, 486 F. Supp 298, 301 (N.D. Ala. 1979) ............................... 32 l'BS, I:1c. v. FCC, 629 F.2d 1, 24 (D.C. Cir. 11980), aff'd, 453 U.S. 367 (1981) ................. 9 l'••ntrai Huclson Gas & Electric Corp. v. Public Service Commission., 444 U.S. 557 (1980) ........... 11 Cher v. Forum International Ltd., 692 F.2d 634, 639 (9th Cir. 1982) cert. denied, U.S. 103 S.C~08~3) ................. 17 c'ut1cn v. California, 403 U.S. 15 (1971) ..............•.. 13 C:unsolidatccl Edison Co. v. Public Serv. Commission., 447 U.S. 530, (1980) ............................... 13,22,23,24 'ox Broadcasting Corporation. v. Cohn, 420 U.S. 469 (1975) ......................................... 14 1r,v1s v. Duryea, 99 Misc.2d 933, 417 N.Y.S. 2d 624 (Sup. Ct. 1979)., ...........................•.. 17,18 _1•uprcc v. Richardson, 314 F. Supp. 1260 I \'I. D. Pa. 19 7 0 ) . 3 3 (iii) INDEX OF AUTHORITIES - Continu0d Fadell v. Minneapolis Star and Tribune, 425 F.Supp. 1075 (N.D. Ind. 197~1 ............. Farm Bureau Mutual Insurance Co. v. Dryden, 492 S.W.2cl 392 (Mo. App. 1973) ..................... ic Fiske v. Kansas, 274 U.S. 380 (1927) ..................... b Fogel v. Forbes, Inc., 500 F. Supp. 1081 17,18, (E.D. Pa. 1980) .................................... 2R,2•1, Gitlow v. New York, 268 U.S. 652 (1925) ................ Greer v. Spock, 424 U.S. 828, (1976) .................... 22 H. O. Merrin & Co. v. A. H. Belo Corp., 228 F.Supp 515 (N.D. Tex. 1969) ............................... 26,Jl Ladany v. Williams Morrow & Co., 465 F.Supp. 870 (S.D.N.Y. 1978) ................................ 28 Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Commission, 701 F.2d 314 (5th Cir. 1983) ................................... Mark v. King Broadcasting Co., 27 Wash. App. 344, 618 P.2d 512 (1980), aff'd, 96 Wash. 2d 473, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 ( 1981) ........... --:-:-:-:- ......................... 34 Meeropol v. Nizer, 381 F.Supp. 29 (S.D.N.Y. 1974), aff'd, 580 F.2d 1061 (2d Cir. 1977), cert. denied, 434\J. s. 1013 ( 1978) ................. --:-:-:-:-. -~-. ;>6 Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) ............................................. 8,21 NAACP v. Alabama, 357 U.S. 449 (1958) ................... 16 Namath v. Sports Illustrated, 48 A.D.2d 487 371 N.Y.2d 10 (1975) aff'd, 39 N.Y.2d 897, 386 N.Y.2d 397, 352 N.E.2d 584 (1977) .............. 30 Neff v. Time, Inc., 406 F.Supp. 858 (W.D. Pa. 1976) .................................... 32 Nelson v. Maine Times, 373 A.2d 1221 (Me. 19 7 7 ) •.•....•....•...•.....••......•..•..... · · 2 ') • New York Times Co. v. Sullivan, 376 U.S. 254, , , ( 196 4) ............................................ 19 2 (iv) INDEX OF AUTHORITIES - Continued Page Pr1ny v. Penthouse, Ltd., 695 F.2d 438 -- I 10th Cir. 1982), cert. ~· ...................... 12 Pusc'Il v. Port of Portland, 641 F. 2d 1243 -- (9th Cir. 1981) .................................... 16 SEC v. Wall Street Transcript Corp., 422 F.2d 1371 12d Cir. 1970), cert. denied, 398 U.S. 958 11970) .......... ~ .. ~ ....................... 9,10 Silverstein v. Sisters of Charity, 38 Colo. App. 2 8 6. 5 5 9 p. 2d 5 7 6 ( 19 7 2 ) . 3 2 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ................................ 13 Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969) ............................................. 11 Tropeano v. Atlantic Monthly, Inc., 400 N.E.2d 8 4 7 ( Mass . 1 9 8 0 ) . 2 9 , 31 United Sttes v. Baranski, 484 F.2d 556 (7th Cir. 1973) .................................... 21 University of Notre Dame v. Twentieth Century Fox, 15 N.Y.2d 940, 259 N.W.S. 2d 440, 207 N.E.2d 508 (1965) .............................. 29 Virginia State Board of Pharm. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) ......................................... 9,10 \iaters v. Chaffin, 684 F.2d 833 (5th Cir. 1982) ......... 13 Whitney v. California, 274 U.S. 357 (1927) .............. 19,34 Younger v. Harris, 401 U.S. 37 (1971) ................... 20,21 c'unsti tut ions Article 1, Section, Utah State Constitution ............. 34 Arttclc 1, Section 15, Utah State Constitution .......... 34 (v) INDEX OF AUTHORITIES - Continued Page Rules Rule 12(b)(6) Utah Rules of Civil ProceJurc ............ Rule 54(b) Utah Rules of Civil Procedure ............... Rule 56 Utah Rules of Civil Procedure .................. Rule 75(p) (2) Ut<:ih Rules of Civil Procedure ............ Statutes 45-3-1 et~., Utah Code Annotated 1953 as amended ........................................ 45-3-3, Utah Code Annotated (1981 Repl. Vol.) ........... 26 45-2-2, Utah Code Annotated (1981 Repl. Vol.) ..........
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