## Facts

- *Sports Illustrated* published an article about body surfing at “the Wedge,” a public beach near Newport Beach, California, portrayed as an unusually dangerous site for the sport.
- The story aimed to describe the sport and the character of participants who seek its hazards.
- Michael S. Virgil, a well-known body surfer at the Wedge, was profiled as an exceptionally daring participant.
- A reporter interviewed Virgil extensively, and the article used information obtained from those interviews.
- The article included photographs of Virgil surfing and on the public beach.
- Virgil alleged that, after learning the story would include personal details beyond athletic accomplishments, he revoked consent to publish certain intimate information about his private life.
- The published article nevertheless included the disputed private-life descriptions, which Virgil claimed were embarrassing and unrelated to legitimate public interest.

## Issues

1. Under California’s public-disclosure-of-private-facts tort as limited by the First Amendment, whether publishing truthful but intimate private facts about Virgil was protected as “newsworthy” or actionable as an invasion of privacy.
2. Whether Time, Inc. was entitled to summary judgment because the challenged disclosures were newsworthy as a matter of law, or whether newsworthiness and related consent questions required jury resolution.

## Decision

- The Ninth Circuit affirmed in part and reversed in part the denial of summary judgment and remanded.
- The court held that material describing Virgil’s public body-surfing activities at a public beach, and his prominence in that dangerous sport, was newsworthy and constitutionally protected as a matter of law.
- The court held that whether specific intimate disclosures about Virgil’s private life were sufficiently related to the newsworthy topic, or instead amounted to “morbid and sensational” prying, presented a triable fact question.
- The court rejected the argument that Virgil’s cooperation with the reporter automatically eliminated privacy protection for all information disclosed; the scope of any consent and the effect of any revocation raised factual disputes not suitable for full summary judgment.

## Legal Principles

- Public disclosure of private facts (California) generally requires: (1) public disclosure, (2) of private facts, (3) that would be highly offensive to a reasonable person, and (4) that are not of legitimate public concern (not newsworthy).
- The First Amendment protects publication of newsworthy matters, but not every truthful, lawfully obtained fact is automatically privileged.
- Newsworthiness is bounded: legitimate public concern is not the same as public curiosity, and publication that a factfinder could view as exploitative “morbid and sensational” disclosure may fall outside constitutional protection.
- Courts may decide newsworthiness as a matter of law in clear cases; where reasonable minds could differ about the connection between intimate details and the public-interest subject, the issue may go to the jury.
- Voluntary disclosure to a reporter does not, by itself, conclusively waive privacy rights as to all details; consent and its scope (including alleged revocation) can present factual questions.

## Conclusion

The Ninth Circuit held that reporting on Virgil’s public participation in a dangerous body-surfing venue was protected, but that liability could still exist for publishing intimate private-life facts if a jury found they were highly offensive and not legitimately newsworthy, and if the publication exceeded any consent given.


Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975)