## Facts

- During a public high-school soccer game, a newspaper photographer took an action photograph of Larry McNamara running and chasing the ball.
- The photo accurately depicted game action but also captured McNamara’s genitalia exposed at that instant, apparently because he was not wearing an athletic supporter and his shorts rode up.
- The newspaper published the photo in the sports section with an article reporting on the game; the exposure was not noticed before publication.
- McNamara sued for (1) invasion of privacy by public disclosure of embarrassing private facts, (2) intentional infliction of emotional distress, and (3) negligent infliction of emotional distress.
- The trial court granted summary judgment for the newspaper on all claims.

## Issues

1. Whether publication of an accurate photograph taken at a public, newsworthy sporting event—though embarrassing and depicting accidental nudity—can support a Texas claim for public disclosure of embarrassing private facts, or is barred as a matter of law by the First Amendment and the Texas Constitution.
2. Whether the same constitutional protections preclude intentional or negligent infliction of emotional distress claims premised solely on the publication of that photograph.

## Decision

- The court of appeals affirmed summary judgment for the newspaper on all claims.
- The privacy claim failed because the publication of a truthful image of a participant at a public, newsworthy event was constitutionally protected and did not constitute actionable disclosure of “private” facts as a matter of law.
- The emotional-distress claims were barred because they were based solely on the protected act of publishing the photograph and could not be used to obtain damages for constitutionally protected expression.

## Legal Principles

- Constitutional free-speech and free-press protections substantially limit tort liability for truthful publication of lawfully obtained information about matters occurring in public and of legitimate public interest.
- For public disclosure of embarrassing private facts, the disclosed matter must be “private” in the sense that it is not exposed to public view; a camera’s accurate capture of what occurred in public does not, by itself, convert the occurrence into a private fact.
- Whether constitutional protections bar tort claims based on publication is a question of law appropriate for resolution on summary judgment.
- A plaintiff may not circumvent constitutional protections by recasting a claim about protected publication as intentional or negligent infliction of emotional distress absent an applicable exception.

## Conclusion

The court held that a newspaper could not be held civilly liable for publishing an accurate photograph taken during a public, newsworthy sports event, even though the image was embarrassing and depicted accidental exposure; the First Amendment and the Texas Constitution barred the privacy and emotional-distress claims as a matter of law.


McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901 (Tex. App.—Corpus Christi 1991)