Byron White

“ But even taking the Court's concerns in the abstract, they miss the mark. Permitting liability under a negligence per se theory does not mean that defendants will be held liable without a showing of negligence, but rather, that the standard of care has been set by the legislature, instead of the courts. The Court says that negligence per se permits a plaintiff to hold a defendant liable without a showing that the disclosure was "of a fact about a person's private life . . . that a reasonable person would find highly offensive." ”

“ Consequently, neither the State's "dissemination" of B.J.F.'s name, nor the standard of liability imposed here, nor the underinclusiveness of Florida tort law requires setting aside the verdict for B.J.F. And as noted above, such a result is not compelled by our cases. I turn, therefore, to the more general principles at issue here to see if they recommend the Court's result.
At issue in this case is whether there is any information about people, which-though true-may not be published in the press. ”

“ This case presents a far cry, then, from Cox Broadcasting or Oklahoma Publishing, where the State asked the news media not to publish information it had made generally available to the public: here, the State is not asking the media to do the State's job in the first instance. Unfortunately, as this case illustrates, mistakes happen: even when States take measures to "avoid" disclosure, sometimes rape victims' names are found out. ”

“ It excludes neighborhood gossips, cf. ante, at 540, because presumably the Florida Legislature has determined that neighborhood gossips do not pose the danger and intrusion to rape victims that "instrument [s] of mass communication" do. Simply put: Florida wanted to prevent the widespread distribution of rape victims' names, and therefore enacted a statute tailored almost as precisely as possible to achieving that end.
Moreover, the Court's "underinclusiveness" analysis itself is "underinclusive." ”

“ Ibid. So described, this case begins to look like the situation in Oklahoma Publishing, where a judge invited reporters into his courtroom, but then tried to prohibit them from reporting on the proceedings they observed. ”