## Facts

- A periodical published an article about two incidents of alleged malpractice involving an anesthesiologist, resulting in a fatality and a severely disabling injury.
- The article reported that one malpractice claim was settled for $900,000 and that the other claim was being pursued toward settlement.
- The article argued the incidents reflected failures in medical self-regulation and institutional discipline by hospitals and regulators.
- To support that theme, the article disclosed the physician’s name, included her photograph, and discussed her psychiatric history and personal/marital problems, suggesting a relationship to the malpractice incidents and asserting that oversight entities knew or should have known of her condition.
- The physician did not dispute the truth of the article’s reported facts or the public importance of medical self-policing, but alleged invasion of privacy based on public disclosure of private facts; she also referenced false light.
- In a diversity action, the district court granted summary judgment for the publisher on First Amendment grounds; the physician appealed.

## Issues

1. Whether truthful publication of a physician’s identity, photograph, psychiatric history, and personal/marital problems is constitutionally protected when published in an article addressing malpractice and failures of medical policing.
2. Whether a false light invasion of privacy claim could be pursued on appeal when it was not properly raised and developed in the district court.

## Decision

- The court of appeals affirmed summary judgment for the publisher.
- It held that the article addressed matters of legitimate public concern and that the challenged personal details bore a sufficient nexus to the newsworthy subject.
- It declined to consider false light because that theory was not properly presented or preserved in the trial court.

## Legal Principles

- The First Amendment limits liability for public disclosure of private facts when the publication concerns a matter of legitimate public interest and the disclosed private facts have substantial relevance to that newsworthy topic.
- Courts allow substantial editorial discretion in selecting details (including naming the subject and using a photograph) when reporting on newsworthy events.
- Editorial inferences drawn from true facts are constitutionally protected as opinion if grounded in the disclosed facts and not knowingly false.
- Issues not properly raised in the trial court generally cannot be asserted for the first time on appeal.

## Conclusion

Because the publication’s discussion of the physician’s identity and personal history was sufficiently related to a newsworthy report on malpractice and failures of medical oversight, the First Amendment barred the public-disclosure claim, and the unpreserved false light theory was unavailable on appeal.


Gilbert v. Med. Econ. Co., 665 F.2d 305 (10th Cir. 1981)