Free Speech

Josh Duggar ("19 Kids and Counting") Lawsuit Thrown Out

Josh Duggar had sued over the government's releasing records of his juvenile investigation.

|The Volokh Conspiracy |

From Duggar v. City of Springdale, 2020 Ark. App. 220 (Apr. 8):

In March 2018, [Josh] Duggar filed a complaint against the City and County alleging that in May 2015 both entities had received requests pursuant to … the Arkansas Freedom of Information Act …, from a Little Rock law firm requesting copies of files and associated documents pertaining to him and his parents, Michelle and Jim Bob Duggar…. Duggar alleged that because the records pertained to a juvenile [child sex abuse] investigation, and because Arkansas law prohibited the public release of reports of juvenile investigations, all the names of the juveniles involved, with the exception of his, were redacted, but his parents' names, past and present addresses, and personal information about the family, including the age of Duggar's parents' youngest child, were not redacted, making the names of the juveniles whose names were redacted readily identifiable. Duggar stated he was born in 1988 but was a juvenile at the time of the incidents detailed in the 2006 report.

He further alleged that at all relevant times, the Duggar family was the subject of a reality television show on The Learning Channel from which a certain level of local, national, and international celebrity was attributable to each and every member of the immediate family, including those named and unnamed in the report. Duggar alleged the City and County released the juvenile incident reports, and such reports were released for international publication in In Touch magazine. Duggar claimed he suffered the tort of outrage, three forms of invasion of privacy (intrusion upon seclusion, public disclosure of private facts, and false light), and a violation of the Arkansas Civil Rights Act of 1993 (ACRA)….

[Outrage]

The tort of outrage—also known as the intentional infliction of emotional distress—subjects an actor to civil liability for committing extreme and outrageous behavior. To succeed on an outrage claim, a plaintiff must demonstrate four elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was "extreme and outrageous," "beyond all possible bounds of decency," and "utterly intolerable in a civilized community"; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it…. The tort of outrage is narrowly viewed by Arkansas appellate courts, which require clear-cut proof to establish the elements. Merely describing conduct as outrageous does not make it so….

In his complaint, Duggar alleges that the juvenile code and the Arkansas Child Maltreatment Act provide that juvenile records shall not be subject to disclosure under FOIA; that there is a public policy that juvenile records "should not follow individuals into adult life and the harmful consequences resulting from said disclosure"; that as a result of the disclosure of protected juvenile records, he has sustained damages; that such disclosure of protected juvenile records "relating to activities which occurred when [Duggar] was not in possession of the full faculties of personal discretion and discernment typically available to an adult" in violation of Arkansas law constitutes "willful, wanton, extreme and outrageous conduct"; and such conduct caused damage to Duggar in the form of severe emotional distress.

We hold that the circuit court correctly dismissed Duggar's outrage claim because he did not state facts sufficient to support his claim. Duggar makes no allegation that any person intended to inflict emotional distress upon him. Duggar also failed to allege how he suffered mental distress. Discomfort, upset, embarrassment, anxiety, loss of sleep, and depression do not meet the "mental distress" element of the tort of outrage. Duggar does not even allege this type of mental distress; he simply asserts that the conduct caused him "severe emotional distress." Again, merely alleging that conduct is outrageous does not make it so….

Invasion of Privacy by Intrusion Upon Seclusion

Arkansas recognizes intrusion as one of the four actionable forms of invasion of privacy. To prove intrusion upon seclusion, a plaintiff must establish (1) that the plaintiff sustained damages; (2) that the defendant intentionally intruded physically or otherwise upon plaintiff's solitude or seclusion and believed or was substantially certain that the defendant lacked the necessary legal authority or personal permission, invitation, or valid consent to commit the intrusive act; (3) that the intrusion was of a kind that would be highly offensive to a reasonable person, as the result of conduct to which a reasonable person would strongly object; (4) that the plaintiff conducted himself or herself in a manner consistent with an actual expectation of privacy; and (5) that the defendant's intrusion was the proximate cause of the plaintiff's damages.

To support his claim for intrusion upon seclusion, Duggar alleged the City and County intentionally intruded upon his seclusion by releasing protected juvenile-investigation reports; they lacked the necessary legal authority, as well as the personal permission, invitation, or valid consent to release said records; such intrusion was of a kind that would be highly objectionable to a reasonable person; he "conducted himself and engaged in a public life consisting of appearance in a popular reality TV series, leadership in national political and civic organizations, public speaking, and otherwise in a manner consistent with his actual expectation of privacy"; he sustained damages in the form of significant emotional distress, mental anguish, and substantial lost income; and the City's and County's intrusions were a proximate cause of his damages.

Duggar relies on Arkansas Code Annotated section 9-27-309(j) in arguing that the circuit court abused its discretion in dismissing his claim for intrusion upon seclusion. When the City and County released the records, in May 2015, that subsection provided:

"Records of the arrest of a juvenile, the detention of a juvenile, and the proceedings under this subchapter shall be confidential and shall not be subject to disclosure under the Freedom of Information Act of 1967, unless:

"(1) Authorized by a written order of the juvenile division of circuit court;

"(2) the arrest or the proceedings under this subchapter result in the juvenile's being formally charged in the criminal division of circuit court for a felony; or

"(3) As allowed under the section or § 9-27-320."

But Duggar, born in 1988, was not a juvenile at the time of the investigation in December 2006, even though the conduct that was investigated allegedly occurred when Duggar was a juvenile. This section therefore does not protect the records at issue from disclosure. {[A 2017 statute] modified Arkansas Code Annotated section 9-27-309(j) to insert "the records of an investigation that is conducted when the alleged offender is an adult and relates to an offense that occurred when the alleged offender was a juvenile" as another category of confidential records not subject to disclosure under FOIA—exactly the factual scenario we have here.}

Duggar also relies on the Child Maltreatment Act to support his claim for intrusion by seclusion …: "Any data, records, reports, or documents that are created, collected, or compiled by or on behalf of the Department of Human Services, the Department of Arkansas State Police, or other entity authorized under this chapter to perform investigations or provide services to children, individuals, or families shall not be subject to disclosure under the Freedom of Information Act of 1967."

Duggar's complaint fails to state a claim upon which relief can be granted in three respects. First, even if the records in question were protected from release under this statutory provision, Duggar failed to state facts showing that the City's and County's release of the records in contravention of the statute was intentional. This circuit court will not presume intent. It must be proved, and in the pleadings phase, it must be alleged to withstand a motion to dismiss …. At most, the allegations reflect that the City's and County's release of the records may have been negligent or the result of a misinterpretation of the law. But there are no allegations that anyone acted intentionally.

Second, Duggar failed to state facts as to how he conducted himself in a manner consistent with an actual expectation of privacy. Duggar stated in his complaint that he and his family were subjects of a reality television series "from which a certain level of celebrity locally, nationally, and internationally was attributable to each and every member of the immediate family." Finally, Duggar failed to state how he suffered damages. He makes a generalized statement that he was emotionally distressed, mentally anguished, and had "substantial lost income," which is not sufficient to support a claim for relief.

Invasion of Privacy by Public Disclosure of Private Facts

Public disclosure of private facts is publicity of a highly objectionable kind, given to private information about the plaintiff, even though it is true, and no action would lie for defamation. To succeed on this invasion-of-privacy claim, Duggar must prove … (1) that he sustained damages; (2) that appellees made a public disclosure of a fact about Duggar; (3) that prior to disclosure the fact was not known to the public; (4) that a reasonable person would find the disclosure highly offensive; (5) that appellees knew or should have known that the disclosed fact was private; (6) that the fact was not of legitimate public concern; and (7) that the public disclosure was the proximate cause of Duggar's damages.

Duggar's claim must fail because he could not show that appellees publicly disclosed a private fact. Rule 10(d) of the Arkansas Rules of Civil Procedure pertains to forms of pleadings and states, "Required Exhibits. A copy of any written instrument or document upon which a claim or defense is based shall be attached as an exhibit to the pleading in which such claim or defense is averred unless good cause is shown for its absence in such pleading."

Duggar did not attach the investigative reports upon which his complaint is based as exhibits to his complaint. Accordingly, there is no way to know what information was contained in the reports and whether they contained private facts. In the order dismissing the federal lawsuit, attached to its answer pursuant to Rule 10(d), the [federal court] found that Duggar had acknowledged in his complaint that In Touch Weekly had published a story about Duggar having been named in an underage sex probe before the City or the County made any records disclosures. If the information contained in the records was already disseminated or known to the public prior to the City's and County's releasing the records, then there was no public disclosure of a private fact. We are unable to determine whether the information contained in the records was private or known to the public because Duggar did not attach the records pursuant to Rule 10(d). Duggar did not state a claim upon which relief can be granted; the circuit court's dismissal was therefore proper.

False-Light Invasion of Privacy

A false-light invasion-of-privacy claim has two essential elements: the complaining party must show (1) that the false light in which he was placed by the publicity would be highly offensive to a reasonable person and (2) that the defendant had knowledge of or acted in reckless disregard as to the falsity of, the publicized matter and the false light in which the plaintiff would be placed. The evidence must support the conclusion that the publisher had serious doubts about the truth of his publication.

In his complaint, Duggar asserts the City and County "gave publicity" to records of a juvenile investigation that placed him before the public in the light of a sex offender when the juvenile records should have remained sealed; that he had a reasonable expectation pursuant to Arkansas Code Annotated sections 9-27-309 and 16-90-1417(b)(1) that the records were to be destroyed on his twenty-first birthday in accordance with state law, and he then "could attest for all future legal intents and purposes that the underlying conduct had never occurred, that said records did not exist, and that said facts were untrue." He claimed he was "seriously offended and aggrieved by the intensely negative publicity" by the illegal release of said records, and the release of the records and the resulting publicity "was a proximate cause of Plaintiff's damages including significant emotional distress, mental anguish and substantial lost income." …

[But] Duggar does not allege that the information released was false, nor does he assert that the City or County knew the information released was false or that either had serious doubts about the truth of the information contained in the records. We affirm the circuit court's dismissal of this claim.

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  1. IANAL which is probably why I don’t understand it being verboten to disclose records of an investigation which took place while the subject was a juvenile, but OK if the investigation into juvenile activities takes place when the subject is an adult. The law expressly allows this, so it’s not a question of judge-made law, it;s the actual legislative intent, and that’s why it puzzles me. I would have thought the purpose of sealing juvenile records is that juveniles, not being adults, make stupid mistakes which should not carry over into condemnation as an adult.

    Suppose a kid robs a store at age 14, but the only clue is fingerprints so they never solve the crime. 4 years later, he gets fingerprinted as a routine matter of employment, the fingerprints match, and they now know who to investigate. Assume the statute of limitations does not come into play. Adjust the ages so that the crime would have been a juvenile crime, not something to be tried as an adult, like murder.

    Would the cops stop investigating because of his age at the time of the crime? Would he be charged as an adult or as a juvenile? I can’t decide what I think — I’ve never considered this before. An interesting dilema. Sort of like statutory rape laws which vary considerably depending on absolute age and relative age difference.

    1. Well, there was the 1975 murder of Martha Moxley — Michael Skakel, also 15 at the time, was convicted in 2002 and sentenced to 20 years to life. See: https://www.greenwichtime.com/news/article/Michael-Skakel-case-timeline-3621920.php

      He was arraigned as a juvenile even though was in his 40’s and then tried as an adult, which I’m not sure would have happened in 1975.

      1. Google found an article saying a Supreme Court ruling in 1989 (Stanford v. Kentucky) upheld the death penalty for offenders who are 16 or older, and mentions a 1984 case of a 17 year old sentenced as an adult for armed robbery, which implies they were tried as adults. 1975 seems close enough.

        1. Connecticut law, not Kentucky law — and Kentucky had a very different attitude toward adulthood. In my doctoral research, I found an AG opinion stating that a girl “younger than age 15” who was married was not truant because she needed to be home tending to her household responsibilities — which is not the case in Connecticut.

          While Connecticut law now permits a 15-year-old to be tried as an adult, I’d be very surprised to learn that was the case back then.

        2. Thompson v. Oklahoma, 487 U.S. 815 (1988) — prohibited execution of 15-year-old.

          1. Of course now, the death penalty for juvenile offenders is unconstitutional, period.

            1. Now. Like, since that constitutional amendment was adopted.

  2. Reminds me of one of Giuliani’s many extralegal outrages, the releasing of the juvenile file on Patrick Dorismond, in an attempt to paint him as a “bad man” after he was shot by police outside that bar my friend worked at, Wakamba.

    https://www.nytimes.com/2000/03/20/nyregion/giuliani-cites-criminal-past-of-slain-man.html

  3. Am I the only person who finds Josh Duggar a bit creepy, and who would not be surprised at all if we find out at some point in the future that growing up in that family left something to be desired?

    1. Krychek,
      I’m gonna correct your first sentence, so that it now–correctly–reads, “…more than a bit creepy . . .?” 🙂

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