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18
Cal. 4th 200; 955 P.2d 469; 74 Cal. Rptr. 2d 843; 1998 Cal. LEXIS 3190; 26
Media L. Rep. 1737; 98 Cal. Daily Op. Service 4105; 98 Daily Journal DAR 5679
RUTH
SHULMAN et al., Plaintiffs and Appellants, v. GROUP W PRODUCTIONS, INC., et
al., Defendants and Respondents.
No. S058629.
SUPREME COURT OF CALIFORNIA
18 Cal. 4th 200; 955 P.2d 469; 74 Cal. Rptr. 2d 843; 1998 Cal. LEXIS 3190; 26
Media L. Rep. 1737; 98 Cal. Daily Op. Service 4105; 98 Daily Journal DAR 5679
June 1, 1998, Decided
SUBSEQUENT HISTORY:
As Modified July 29, 1998. Rehearing Denied July 29, 1998, Reported at:
1998 Cal. LEXIS 4846.
PRIOR HISTORY: Superior County: Los Angeles. Court of
Appeal of California, Second Appellate District, Division Five. B081390. Los
Angeles. Super. Ct. No. BC031250. Lillian M. Stevens, Judge.
COUNSEL:
John D. Rowell, Lewis, Goldberg & Ball, Michael L. Goldberg, Paul &
Stuart, Stuart Law Firm, Antony Stuart and William A. Daniels for Plaintiffs
and Appellants.
Cornell Chulay, Epstein, Becker & Green, Janet Morgan, Terry M. Gordon,
Richard A. Hoyer, Tharpe & Howell, Donald F. Austin, Davis, Wright,
Tremaine, Kelli L. Sager, Karen N. Fredericksen and Frederick F. Mumm for
Defendants and Respondents.
James E. Grossberg as Amicus Curiae on behalf of Defendants and
Respondents.
Neville L. Johnson and David A. Elder as Amici Curiae.
JUDGES: Opinion by Werdegar, J., with George, C. J., and Kennard,
J., concurring. Concurring opinion by Kennard, J., with Mosk, J., concurring.
Concurring and dissenting opinion by Chin, J., with Mosk, J., concurring.
Concurring and dissenting opinion by Brown, J., with Baxter, J., concurring.
OPINIONBY: WERDEGAR
OPINION:
WERDEGAR, J.
More than 100 years ago, Louis Brandeis and Samuel Warren complained that
the press, armed with the then recent invention of "instantaneous
photographs" and under the influence of new "business methods,"
was "overstepping in every direction the obvious bounds of propriety and
of decency." (Warren & Brandeis, The Right to Privacy (1890) 4
Harv. L.Rev. 193, 195-196 (hereafter Brandeis).) Even more ominously, they
noted the "numerous mechanical devices" that "threaten to make
good the prediction that 'what is whispered in the closet shall be proclaimed
from the house-tops.' " ( Id. at p. 195.) Today, of course, the
newspapers of 1890 have been joined by the electronic media; today, a vast
number of books, journals, television and radio stations, cable channels and Internet
content sources all compete to satisfy our thirst for knowledge and our need
for news of political, economic and cultural events--as well as our love of
gossip, our curiosity about the private lives of others, and "that weak
side of human nature which is never wholly cast down by the misfortunes and
frailties of our neighbors." ( Id. at p. 196.) Moreover, the
"devices" available for recording and transmitting what would
otherwise be private have multiplied and improved in ways the 19th century
could hardly imagine.
Over the same period, the United States has also seen a series of
revolutions in mores and conventions that has moved, blurred and, at times,
seemingly threatened to erase the line between public and private life. While even
in their day Brandeis and Warren complained that "the details of sexual
relations are spread broadcast in the columns of the daily papers"
(Brandeis, supra, 4 Harv. L.Rev. at p. 196), today's public discourse is
particularly notable for its detailed and graphic discussion of intimate
personal and family matters--sometimes as topics of legitimate public concern,
sometimes as simple titillation. More generally, the dominance of the visual
image in contemporary culture and the technology that makes it possible to
capture and, in an instant, universally disseminate a picture or sound allows
us, and leads us to expect, to see and hear what our
great-grandparents could have known only through written description.
The sense of an ever-increasing pressure on personal privacy
notwithstanding, it has long been apparent that the desire for privacy must at
many points give way before our right to know, and the news media's right to
investigate and relate, facts about the events and individuals of our time.
Brandeis and Warren were themselves aware that recognition of the right to
privacy requires a line to be drawn between properly private events, words and
actions and those of "public and general interest" with which the
community has a "legitimate concern." (Brandeis, supra, 4
Harv. L.Rev. at p. 214.) As early as 1931, in the first California case
recognizing invasion of privacy as a tort, the court observed that the right of
privacy "does not exist in the dissemination of news and news
events." ( Melvin v. Reid (1931) 112 Cal. App.. 285, 290 [297 P.
91].)
Also clear is that the freedom of the press, protected by the supreme law
of the First and Fourteenth Amendments to the United States Constitution,
extends far beyond simple accounts of public proceedings and abstract
commentary on well-known events. "The guarantees for speech and press are
not the preserve of political expression or comment on public affairs,
essential as those are to healthy government. One need only pick up any newspaper
or magazine to comprehend the vast range of published matter which exposes
persons to public view, both private citizens and public officials. Exposure of
the self to others in varying degrees is a concomitant of life in a civilized
community. The risk of this exposure is an essential incident of life in a
society which places a primary value on freedom of speech and of press." (
Time, Inc. v. Hill (1967) 385 U.S. 374, 388 [87 S. Ct. 534, 542, 17 L.
Ed. 2d 456].) Thus, "[t]he right to keep information private was bound to
clash with the right to disseminate information to the public." ( Briscoe
v. Reader's Digest Association, Inc. (1971) 4 Cal. 3d 529, 534 [93 Cal.
Rptr. 866, 483 P.2d 34, 57 A.L.R.3d 1].)
Despite, then, the intervening social and technological changes since 1890,
the fundamental legal problems in defining a right of privacy vis-a-vis
the news media have not changed--they have, if anything, intensified. At what
point does the publishing or broadcasting of otherwise private words, expressions
and emotions cease to be protected by the press's constitutional and common law
privilege--its right to report on matters of legitimate public interest--and
become an unjustified, actionable invasion of the subject's private life? How
can the courts fashion and administer meaningful rules for protecting privacy
without unconstitutionally setting themselves up as censors or editors?
Publication or broadcast aside, do reporters, in their effort to gather
the news, have any special privilege to intrude, physically or with
sophisticated photographic and recording equipment, into places and
conversations that would otherwise be private? Questions of this nature have
concerned courts and commentators at least since Brandeis and Warren wrote
their seminal article, and continue to do so to this day. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Historical scholarship has led some writers to question whether the
Boston newspapers of 1890 were in fact abusively invasive of personal privacy,
or whether Brandeis and Warren's hostile attitude stemmed rather from patrician
adherence to an anachronistically narrow view of what was proper
"news." (See Barron, Warren and Brandeis, The Right to
Privacy, 4 Harv. L.Rev. 193 (1890): Demystifying a Landmark Citation (1979)
13 Suffolk U. L.Rev. 875.) Whether or not Brandeis and Warren exaggerated the
sensationalism and invasiveness of the newspapers of their day, however, they
undoubtedly highlighted and gave vivid expression to a continuing legal
problem--how to protect personal privacy without infringing on freedom of the
press.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In the present case, we address the balance between privacy and press
freedom in the commonplace context of an automobile accident. Plaintiffs, two
members of a family whose activities and position did not otherwise make them
public figures, were injured when their car went off the highway, overturning
and trapping them inside. A medical transport and rescue helicopter crew came
to plaintiffs' assistance, accompanied on this occasion by a video camera
operator employed by a television producer. The cameraman filmed plaintiffs'
extrication from the car, the flight nurse and medic's efforts to give them medical
care during the extrication, and their transport to the hospital in the
helicopter. The flight nurse wore a small microphone that picked up her
conversations with other rescue workers and with one of the plaintiffs. This
videotape and sound track were edited into a segment that was broadcast, months
later, on a documentary television show, On Scene: Emergency Response.
Plaintiffs, who consented neither to the filming and recording nor to the
broadcast, allege the television producers thereby intruded into a realm of
personal privacy and gave unwanted publicity to private events of their lives.
The trial court granted summary judgment for the producers on the ground
that the events depicted in the broadcast were newsworthy and the producers'
activities were therefore protected under the First Amendment to the United
States Constitution. The Court of Appeal reversed, finding triable issues of
fact exist as to one plaintiff's claim for publication of private facts and
legal error on the trial court's part as to both plaintiffs' intrusion claims.
Agreeing with some, but not all, of the Court of Appeal's analysis, we conclude
summary judgment was proper as to plaintiffs' cause of action for publication
of private facts, but not as to their cause of action for intrusion. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Five justices (Chief Justice George, Justice Mosk, Justice Kennard,
Justice Chin and myself) conclude summary judgment was proper on the cause of
action for publication of private facts. Five justices (Chief Justice George,
Justice Kennard, Justice Baxter, Justice Brown and myself) conclude summary
judgment was improper on the cause of action for intrusion. Part I of this
opinion's discussion expresses the views of a majority of the court's members.
(See conc. & dis. opn. of Chin, J., post, at p. 247.) Part II
expresses a majority's views except for the reservations stated by Justice
Brown. (See conc. & dis. opn. of Brown, J., post, at p. 249, fn. 1.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
FACTS AND PROCEDURAL HISTORY
On June 24, 1990, plaintiffs Ruth and Wayne Shulman, mother and son, were
injured when the car in which they and two other family members were riding on
interstate 10 in Riverside County flew off the highway and tumbled down an
embankment into a drainage ditch on state-owned property, coming to rest upside
down. Ruth, the most seriously injured of the two, was pinned under the car.
Ruth and Wayne both had to be cut free from the vehicle by the device known as
"the jaws of life."
A rescue helicopter operated by Mercy Air was dispatched to the scene. The
flight nurse, who would perform the medical care at the scene and on the way to
the hospital, was Laura Carnahan. Also on board were the pilot, a medic and
Joel Cooke, a video camera operator employed by defendants Group W Productions,
Inc., and 4MN Productions. Cooke was recording the rescue operation for later
broadcast.
Cooke roamed the accident scene, videotaping the rescue. Nurse Carnahan
wore a wireless microphone that picked up her conversations with both Ruth and
the other rescue personnel. Cooke's tape was edited into a piece approximately
nine minutes long, which, with the addition of narrative voice-over, was broadcast
on September 29, 1990, as a segment of On Scene: Emergency Response.
The segment begins with the Mercy Air helicopter shown on its way to the
accident site. The narrator's voice is heard in the background, setting the
scene and describing in general terms what has happened. The pilot can be heard
speaking with rescue workers on the ground in order to prepare for his landing.
As the helicopter touches down, the narrator says: "[F]our of the patients
are leaving by ground ambulance. Two are still trapped inside." (The first
part of this statement was wrong, since only four persons were in the car to
start.) After Carnahan steps from the helicopter, she can be seen and heard
speaking about the situation with various rescue workers. A firefighter assures
her they will hose down the area to prevent any fire from the wrecked car.
The videotape shows only a glimpse of Wayne, and his voice is never heard.
Ruth is shown several times, either by brief shots of a limb or her torso, or
with her features blocked by others or obscured by an oxygen mask. She is also
heard speaking several times. Carnahan calls her "Ruth," and her last
name is not mentioned on the broadcast.
While Ruth is still trapped under the car, Carnahan asks Ruth's age. Ruth
responds, "I'm old." On further questioning, Ruth reveals she is 47,
and Carnahan observes that "it's all relative. You're not that old."
During her extrication from the car, Ruth asks at least twice if she is
dreaming. At one point she asks Carnahan, who has told her she will be taken to
the hospital in a helicopter: "Are you teasing?" AT ANOTHER POINT SHE
SAYS: "This is terrible. Am I dreaming?" She also asks what happened
and where the rest of her family is, repeating the questions even after being
told she was in an accident and the other family members are being cared for.
While being loaded into the helicopter on a stretcher, Ruth says: "I just
want to die." Carnahan reassures her that she is "going to do real
well," BUT RUTH REPEATS: "I just want to die. I don't want to go
through this."
Ruth and Wayne are placed in the helicopter, and its door is closed. The
narrator states: "Once airborne, Laura and [the flight medic] will update
their patients' vital signs and establish communications with the waiting
trauma teams at Loma Linda." Carnahan, speaking into what appears to be a
radio microphone, transmits some of Ruth's vital signs and states that Ruth
cannot move her feet and has no sensation. The video footage during the
helicopter ride includes a few seconds of Ruth's face, covered by an oxygen
mask. Wayne is neither shown nor heard.
The helicopter lands on the hospital roof. With the door open, Ruth states
while being taken out: "My upper back hurts." CARNAHAN REPLIES:
"Your upper back hurts. That's what you were saying up there." RUTH
STATES: "I don't feel that great." CARNAHAN RESPONDS: "You
probably don't."
Finally, Ruth is shown being moved from the helicopter into the hospital.
The narrator concludes by stating: "Once inside both patients will be
further evaluated and moved into emergency surgery if need be. Thanks to the
efforts of the crew of Mercy Air, the firefighters, medics and police who
responded, patients' lives were saved." As the segment ends, a brief,
written epilogue appears on the screen, stating: "Laura's patient spent
months in the hospital. She suffered severe back injuries. The others were all
released much sooner."
The accident left Ruth a paraplegic. When the segment was broadcast, Wayne
phoned Ruth in her hospital room and told her to turn on the television because
"Channel 4 is showing our accident now." Shortly afterward, several
hospital workers came into the room to mention that a videotaped segment of her
accident was being shown. Ruth was "shocked, so to speak, that this would
be run and I would be exploited, have my privacy invaded, which is what I felt
had happened." She did not know her rescue had been recorded in this
manner and had never consented to the recording or broadcast. Ruth had the
impression from the broadcast "that I was kind of talking nonstop, and I
remember hearing some of the things I said, which were not very pleasant."
Asked at deposition what part of the broadcast material she considered private,
Ruth explained: "I think the whole scene was pretty private. It was pretty
gruesome, the parts that I saw, my knee sticking out of the car. I certainly
did not look my best, and I don't feel it's for the public to see. I was not at
my best in what I was thinking and what I was saying and what was being shown,
and it's not for the public to see this trauma that I was going through."
Ruth and Wayne sued the producers of On Scene: Emergency Response,
as well as others. n3 The first amended complaint included two causes of action
for invasion of privacy, one based on defendants' unlawful intrusion by
videotaping the rescue in the first instance and the other based on the public
disclosure of private facts, i.e., the broadcast.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Mercy Air, Warner Brothers, Inc., and television station KNBC were
originally named as defendants but have been eliminated through proceedings in
the trial court and Court of Appeal, the merits of which are not before us.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Defendants moved for summary judgment, contending primarily that their
conduct was protected by the First Amendment because of the broadcast's
newsworthy content. In their response to the summary judgment motion,
plaintiffs conceded, as undisputed facts, that an account of their accident and
rescue appeared in a San Bernardino area newspaper shortly after the rescue and
before the broadcast; that Mercy Air was dispatched to the scene by Riverside
County officials and rendered service pursuant to Mercy Air's license and
agreement with the county; and that auto accidents on public highways and
publicly provided emergency rescue and medical services were both matters of
public interest that constituted public affairs.
The trial court granted the media defendants' summary judgment motion,
basing its ruling on plaintiffs' admissions that the accident and rescue were
matters of public interest and public affairs. Those admissions, in the trial
court's view, showed as a matter of law that the broadcast material was
newsworthy, thereby vesting the media defendants' conduct with First Amendment
protection. The court entered judgment for defendants on all causes of action.
The Court of Appeal reversed and remanded for further proceedings, but on
limited grounds and as to some causes of action only. First, the Court of
Appeal held plaintiffs had no reasonable expectation of privacy in the events
at the accident scene itself. According to the lower court, "Appellants'
accident occurred on a heavily traveled public highway . . . . The videotape
itself shows a crowd of onlookers peering down at the rescue scene below.
Appellants could be seen and heard by anyone at the accident site itself and
could not have had a reasonable expectation of privacy at the scene in regard to
what they did or said. Their statements or exclamations could be freely heard
by all who passed by and were thus public, not private." Once inside the
helicopter, however, the court next reasoned, plaintiffs did have a
reasonable expectation of privacy; the helicopter was essentially an airborne
ambulance, and an ambulance in emergency medical use is considered a private
space, both by social tradition and by analogy to a hospital room, which was
deemed private in Noble v. Sears, Roebuck & Co. (1973) 33 Cal. App.
3d 654 [109 Cal. Rptr. 269, 73 A.L.R.3d 1164].
As to Ruth's cause of action for publication of private facts (limited to
the broadcast of events recorded inside the helicopter), the Court of Appeal
concluded triable issues of fact existed on the element of offensiveness and on
a defense of newsworthiness. With regard to plaintiffs' claims of intrusion,
also as related to the recording of events in the helicopter, the Court of
Appeal, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.
4th 1 [26 Cal. Rptr. 2d 834, 865 P.2d 633], held the trial court erred in
applying a complete defense of newsworthiness; instead, the trial court should
have conducted an analysis balancing plaintiffs' privacy rights against
defendants' First Amendment interest in recording the rescue. The Court of
Appeal therefore remanded for further proceedings as to both plaintiffs' cause
of action for intrusion and as to Ruth's cause of action for publication of
private facts.
We conclude the Court of Appeal's judgment should be affirmed except
insofar as it remanded for further proceedings on Ruth's private facts claim.
With regard to that claim, we hold that the material broadcast was newsworthy
as a matter of law and, therefore, cannot be the basis for tort liability under
a private facts claim. Summary judgment thus was proper as to both plaintiffs
on the private facts cause of action.
As to intrusion, the Court of Appeal correctly found triable issues exist
as to whether defendants invaded plaintiffs' privacy by accompanying plaintiffs
in the helicopter. Contrary to the holding below, we also hold triable issues
exist as to whether defendants tortiously intruded by listening to Ruth's
confidential conversations with Nurse Carnahan at the rescue scene without
Ruth's consent. Moreover, we hold defendants had no constitutional privilege so
to intrude on plaintiffs' seclusion and private communications.
DISCUSSION
Influenced by Dean Prosser's analysis of the tort actions for invasion of
privacy (Prosser, Privacy (1960) 48 Cal.L.Rev. 381) and the exposition
of a similar analysis in the Restatement Second of Torts sections 652A-652E
(further references to the Restatement are to the Restatement Second of Torts),
California courts have recognized both of the privacy causes of action pleaded
by plaintiffs here: (1) public disclosure of private facts, and (2) intrusion
into private places, conversations or other matters. (See Forsher v.
Bugliosi (1980) 26 Cal. 3d 792, 808 [163 Cal. Rptr. 628, 608 P.2d 716]; Kapellas
v. Kofman (1969) 1 Cal. 3d 20, 35-36 [81 Cal. Rptr. 360, 459 P.2d 912]; Miller
v. National Broadcasting Co. (1986) 187 Cal. App. 3d 1463, 1482 [232 Cal.
Rptr. 668, 69 A.L.R.4th 1027]; Diaz v. Oakland Tribune, Inc. (1983) 139
Cal. App. 3d 118, 126 [188 Cal. Rptr. 762] (Diaz).) n4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 The other two "Prosser torts" are presentation of the
plaintiff to the public in a false light and appropriation of image or
personality. (See Kapellas v. Kofman, supra, 1 Cal. 3d at p. 35,
fn. 16.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We shall review the elements of each privacy tort, as well as the common
law and constitutional privilege of the press as to each, and shall apply in
succession this law to the facts pertinent to each cause of action.
I. Publication of Private Facts
(1a) The claim that a publication has given unwanted publicity to
allegedly private aspects of a person's life is one of the more commonly
litigated and well-defined areas of privacy law. In Diaz, supra,
139 Cal. App. 3d at page 126, the appellate court accurately discerned the
following elements of the public disclosure tort: "(1) public disclosure
(2) of a private fact (3) which would be offensive and objectionable to the
reasonable person and (4) which is not of legitimate public concern." (See
Forsher v. Bugliosi, supra, 26 Cal. 3d at pp. 808-809; Gill v.
Hearst Publishing Co. (1953) 40 Cal. 2d 224, 228-231 [253 P.2d 441]; Carlisle
v. Fawcett Publications, Inc. (1962) 201 Cal. App. 2d 733, 744-748 [20 Cal.
Rptr. 405].) That formulation does not differ significantly from the
Restatement's, which provides that "[o]ne who gives publicity to a matter
concerning the private life of another is subject to liability to the other for
invasion of his privacy, if the matter publicized is of a kind that [P] (a)
would be highly offensive to a reasonable person, and [P] (b) is not of
legitimate concern to the public." ( Rest.2d Torts, § 652D.)
The element critical to this case is the presence or absence of legitimate
public interest, i.e., newsworthiness, in the facts disclosed. (2a)
After reviewing the decisional law regarding newsworthiness, we conclude, inter
alia, that lack of newsworthiness is an element of the "private
facts" tort, making newsworthiness a complete bar to common law liability.
We further conclude that the analysis of newsworthiness inevitably involves
accommodating conflicting interests in personal privacy and in press freedom as
guaranteed by the First Amendment to the United States Constitution, and that
in the circumstances of this case--where the facts disclosed about a private
person involuntarily caught up in events of public interest bear a logical relationship
to the newsworthy subject of the broadcast and are not intrusive in great
disproportion to their relevance--the broadcast was of legitimate public
concern, barring liability under the private facts tort.
The Diaz formulation, like the Restatement's, includes as a tort
element that the matter published is not of legitimate public concern. Diaz
thus expressly makes the lack of newsworthiness part of the plaintiff's
case in a private facts action. (See also Diaz, supra, 139 Cal.
App. 3d at pp. 128-130 [plaintiff bears burden of proving published matter was
not newsworthy].) Our own decisions are consistent, if less explicit, on this
point. (See Forsher v. Bugliosi, supra, 26 Cal. 3d at p. 809 [The
defendant's First Amendment right to disseminate information to the public must
be considered "[i]n determining whether a cause of action [for publication
of private facts] has been stated . . . ."]; Gill v. Curtis Publishing
Co. (1953) 38 Cal. 2d 273, 278 [239 P.2d 630] [Public interest in the
dissemination of news and information must be balanced against the privacy
right "in defining the boundaries of the right."].) The Diaz
approach is consistent with the tort's historical development, in which
defining an actionable invasion of privacy has generally been understood to
require balancing privacy interests against the press's right to report, and
the community's interest in receiving, news and information. (See Brandeis, supra,
4 Harv. L.Rev. at p. 214; Melvin v. Reid, supra, 112 Cal. App..
at p. 290; Sidis v. F-R Publishing Corporation (2d Cir. 1940) 113 F.2d
806, 809; Barber v. Time, Inc. (1942) 348 Mo. 1199, 1206 [159 S.W.2d
291]; Carlisle v. Fawcett Publications, Inc., supra, 201 Cal.
App. 2d at p. 745; Gill v. Curtis Publishing Co., supra, 38 Cal. 2d
at p. 277; Briscoe v. Reader's Digest Association, Inc., supra, 4
Cal. 3d at p. 534.)
We therefore agree with defendants that under California common law the
dissemination of truthful, newsworthy material is not actionable as a
publication of private facts. ( Kapellas v. Kofman, supra, 1 Cal.
3d at pp. 35-36; Diaz, supra, 139 Cal. App. 3d at p. 126; Rest.2d
Torts, § 652D.) If the contents of a broadcast or publication are of legitimate
public concern, the plaintiff cannot establish a necessary element of the tort
action, the lack of newsworthiness. To so state, however, is merely to begin
the necessary legal inquiry, not to end it. It is in the determination of
newsworthiness--in deciding whether published or broadcast material is of
legitimate public concern--that courts must struggle most directly to
accommodate the conflicting interests of individual privacy and press freedom.
Although we speak of the lack of newsworthiness as an element of the
private facts tort, newsworthiness is at the same time a constitutional defense
to, or privilege against, liability for publication of truthful information. ( Forsher
v. Bugliosi, supra, 26 Cal. 3d at p. 809; Gilbert v. Medical
Economics Co. (10th Cir. 1981) 665 F.2d 305, 307-308; Vassiliades v.
Garfinckel's Brooks Bros. (D.C. 1985) 492 A.2d 580, 589.) Indeed, the
danger of interference with constitutionally protected press freedom has been
and remains an ever-present consideration for courts and commentators
struggling to set the tort's parameters, and the requirements of tort law and
the Constitution have generally been assumed to be congruent. (See Rest.2d
Torts, § 652D, com. d, p. 388 [newsworthiness standard developed in common law
but now expresses constitutional limit as well]; Virgil v. Time, Inc.
(9th Cir. 1975) 527 F.2d 1122, 1128-1130 [accepting Restatement test of
newsworthiness as constitutional standard]; Ross v. Midwest Communications,
Inc. (5th Cir. 1989) 870 F.2d 271, 273 [Stating of Texas law, which follows
the Restatement, that "[i]n the 'newsworthiness' line of argument . . .
the state law and constitutional tests are the same."].) Little is to be
gained, therefore, in attempting to keep rigorously separate the tort and
constitutional issues as regards newsworthiness, and we have not attempted to
do so here. Tort liability, obviously, can extend no further than the First
Amendment allows; conversely, we see no reason or authority for fashioning the
newsworthiness element of the private facts tort to preclude liability
where the Constitution would allow it.
Delineating the exact contours of the constitutional privilege of the press
in publication of private facts is, however, particularly problematic, because
this privilege has not received extensive attention from the United States
Supreme Court. The high court has considered the issue in only one case
involving the common law public disclosure tort, Cox Broadcasting Corp. v.
Cohn (1975) 420 U.S. 469 [95 S. Ct. 1029, 43 L. Ed. 2d 328] (Cox
Broadcasting), and its holding in that case was deliberately and explicitly
narrow. In Cox Broadcasting, a criminal court clerk, during a recess in
court proceedings relating to a rape-murder case, allowed a television reporter
to see the indictment, which contained the name of the victim. The television
station broadcast an account of the court proceedings, using the victim's name;
the victim's father alleged the broadcast to be a tortious publication of
private facts. ( Id. at pp. 471-474 [95 S. Ct. at pp. 1034-1035].) The
Georgia Supreme Court, relying on a Georgia statute prohibiting publication or
broadcast of a rape victim's identity, held the broadcast of the victim's name
was not privileged as newsworthy; the court viewed the statute as showing that
the victim's identity was not a matter of legitimate public concern. The state
court further held the statute did not itself infringe on the station's First
Amendment rights. ( Id. at p. 475 [95 S. Ct. at p. 1035].)
The federal high court reversed, but--recognizing the important interests
on both sides of the newsworthiness question--proceeded cautiously and on
limited grounds. "Rather than address the broader question of whether
truthful publications may ever be subjected to civil or criminal liability
consistently with the First and Fourteenth Amendments, or to put it another
way, whether the State may ever define and protect an area of privacy free from
unwanted publicity in the press, it is appropriate to focus on the narrower
interface between press and privacy that this case presents, namely, whether
the State may impose sanctions on the accurate publication of the name of a
rape victim obtained from public records--more specifically, from judicial
records which are maintained in connection with a public prosecution and which
themselves are open to public inspection. We are convinced that the State may
not do so." (Cox Broadcasting, supra, 420 U.S. at p. 491 [95
S. Ct. at p. 1044].) For this holding the court relied on the
"responsibility of the press to report the operations of government"
( id. at p. 492 [95 S. Ct. at p. 1045]), including judicial proceedings
regarding crimes, and on the premise that "[b]y placing the information in
the public domain on official court records, the State must be presumed to have
concluded that the public interest was thereby being served" ( id.
at p. 495 [95 S. Ct. at p. 1046]).
A more recent case cited by defendants, The Florida Star v. B. J. F.
(1989) 491 U.S. 524 [109 S. Ct. 2603, 105 L. Ed. 2d 443] (Florida Star),
reached a similar conclusion with regard to a Florida statute that, like the
Georgia law in Cox Broadcasting, criminally punished the publication of
a sexual assault victim's name. In Florida Star, however, the
plaintiff's civil action was not pled as the common law tort for publication of
private facts, but rather as a negligence action (with the criminal statute
used as predicate for application of the negligence per se doctrine), a
distinction the high court relied upon in holding liability to be
constitutionally barred. ( Id. at p. 539 [109 S. Ct. at p. 2612].) Here,
again, the high court chose to move cautiously, "relying on limited
principles that sweep no more broadly than the appropriate context of the
instant case." ( Id. at p. 533 [109 S. Ct. at p. 2609].) The
limited principle relied upon in Florida Star was that " '[I]f a
newspaper lawfully obtains truthful information about a matter of public
significance then state officials may not constitutionally punish publication
of the information, absent a need to further a state interest of the highest
order.' " (Ibid.) Like Cox Broadcasting, the Florida Star
decision provides little general guidance as to what is, and is not, "a
matter of public significance"--what is newsworthy, in other words--or as
to when, if ever, the protection of private facts against public disclosure
should be considered a sufficiently important state interest to justify civil
liability pursuant to the common law tort. As in Cox Broadcasting,
moreover, the Florida Star newspaper had obtained the victim's name from
a public records source, in this case a police report made available to the
press. The high court's holding that publication was constitutionally protected
again rested in large part on the fact the government had, by making the
information available to the press, impliedly determined its dissemination was
in the public interest, and could not then punish a newspaper for
"rely[ing] on the government's implied representations of the lawfulness
of dissemination." (Florida Star, supra, 491 U.S. at p. 536
[109 S. Ct. at p. 2610].)
One federal court has observed that, despite the limited scope of their
holdings, "the implications of [Cox Broadcasting and Florida
Star] for the branch of the right of privacy that limits the publication of
private facts are profound . . . . The Court must believe that the First
Amendment greatly circumscribes the right even of a private figure to obtain
damages for the publication of newsworthy facts about him, even when they are
facts of a kind that people want very much to conceal." ( Haynes v.
Alfred A. Knopf, Inc. (7th Cir. 1993) 8 F.3d 1222, 1232.) We agree the high
court's decisions are instructive on the strength of First Amendment protection
for truthful publication of private facts. More particularly, they establish
that truthful reporting on current judicial proceedings, using material drawn
from public records, is generally within the scope of constitutional
protection. The decisions do not, however, enunciate a general test of
newsworthiness applicable to other factual circumstances or provide a broad
theoretical basis for discovery of such a general constitutional standard. (See
Woito & McNulty, The Privacy Disclosure Tort and the First Amendment:
Should the Community Decide Newsworthiness? (1978) 64 Iowa L.Rev.
185, 199-202.)
Newsworthiness--constitutional or common law--is also difficult to define
because it may be used as either a descriptive or a normative term. "Is
the term 'newsworthy' a descriptive predicate, intended to refer to the fact
there is widespread public interest? Or is it a value predicate, intended to
indicate that the publication is a meritorious contribution and that the
public's interest is praiseworthy?" (Comment, The Right of Privacy:
Normative-Descriptive Confusion in the Defense of Newsworthiness (1963) 30
U. Chi. L.Rev. 722, 725.) A position at either extreme has unpalatable
consequences. If "newsworthiness" is completely descriptive--if all
coverage that sells papers or boosts ratings is deemed newsworthy--it would
seem to swallow the publication of private facts tort, for "it would be
difficult to suppose that publishers were in the habit of reporting occurrences
of little interest." ( Id. at p. 734.) At the other extreme, if
newsworthiness is viewed as a purely normative concept, the courts could become
to an unacceptable degree editors of the news and self-appointed guardians of
public taste.
The difficulty of finding a workable standard in the middle ground between
the extremes of normative and descriptive analysis, and the variety of factual
circumstances in which the issue has been presented, have led to considerable
variation in judicial descriptions of the newsworthiness concept. As one
commentator has noted, the newsworthiness test "bears an enormous social
pressure, and it is not surprising to find that the common law is deeply
confused and ambivalent about its application." (Post, The Social
Foundations of Privacy: Community and Self in the Common Law Tort (1989) 77
Cal.L.Rev. 957, 1007.) Without attempting an exhaustive survey, and with
particular focus on California decisions, we review some of these attempts
below.
In the first California privacy case, Melvin v. Reid, supra,
112 Cal. App.. 285, the defendants, using the plaintiff's true maiden name, had
produced and exhibited a motion picture based on events of the plaintiff's
life, including her having been a prostitute many years earlier. ( Id.
at pp. 286-287.) The appellate court held the use of the plaintiff's true name
"was unnecessary and indelicate, and a willful and wanton disregard of
that charity which should actuate us in our social intercourse." ( Id.
at p. 291.) In short, such use was "not justified by any standard of
morals or ethics known to us." ( Id. at p. 292.)
This court took a similar, albeit less overtly moralistic, approach in Gill
v. Curtis Publishing Co., supra, 38 Cal. 2d 273 (Gill v. Curtis),
involving a Ladies Home Journal article entitled Love that used a
photograph of the plaintiffs embracing to illustrate the "wrong" kind
of love, "founded upon 100 per cent sex attraction." ( Id. at
p. 275.) As the Court of Appeal had done in Melvin v. Reid, supra,
112 Cal. App.. 285, we attempted to distinguish a disclosure of private facts
that was closely connected to the newsworthiness of the publication from one
that superfluously exposed the subject's private life to public view. Assuming
the article's contents "to be within the range of public interest in
dissemination of news, information or education," still "the public
interest did not require the use of any particular person's likeness nor that
of plaintiffs without their consent." ( Gill v. Curtis, supra,
at p. 279.) Although we therefore did not need to decide on a general standard
of newsworthiness, we noted that "[f]actors deserving consideration may
include the medium of publication, the extent of the use, the public interest
served by the publication, and the seriousness of the interference with the
person's privacy." ( Id. at pp. 278-279.)
A year later, without explicitly overruling Gill v. Curtis, we
reached a seemingly inconsistent conclusion in another case involving the same
publication. ( Gill v. Hearst Publishing Co., supra, 40 Cal. 2d
224 (Gill v. Hearst).) We held no action for invasion of privacy
would lie solely for publication of the photograph of the plaintiffs
embracing. The photograph itself, we reasoned, enjoyed some measure of
constitutional protection despite its slight or nonexistent informational
value. "Apparently the picture has no particular news value but is
designed to serve the function of entertainment as a matter of legitimate
public interest. [Citation.] However, the constitutional guarantees of freedom
of expression apply with equal force to the publication whether it be a news
report or an entertainment feature . . . ." ( Id . at p. 229.) n5
The author of Gill v. Curtis dissented from this portion of Gill v.
Hearst, arguing, "it should be quite obvious that there is no news or
educational value whatsoever in the photograph alone. It depicts two persons
(plaintiffs) in an amorous pose. . . . While some remote news significance
might be attached to persons in such a pose on the theory that the public likes
and is entitled to see persons in such a pose, there is no reason why the
publisher need invade the privacy of John and Jane Doe for his purpose. He can employ
models for that purpose and the portion of the public interested will never
know the difference but its maudlin curiosity will be appeased." ( Gill
v. Hearst, supra, 40 Cal. 2d at p. 232 (conc. & dis. opn. of
Carter, J.).)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 We went on to hold that publication of the photograph, taken at the
plaintiffs' ice cream booth in the Los Angeles Farmers' Market, "did not
disclose anything which until then had been private," nor was the depiction
of the plaintiffs objectionable or offensive to a reasonable person. ( Gill
v. Hearst, supra, 40 Cal. 2d at pp. 230-231.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
This court next addressed the question in Kapellas v. Kofman, supra,
1 Cal. 3d 20 (Kapellas), involving a newspaper editorial that allegedly
violated the privacy rights of the children of a woman running for public
office by revealing certain juvenile offenses and peccadilloes for which the
children had been arrested or detained. Drawing from academic comment and the
two Gill decisions, we attempted a general analysis involving the
balancing of three factors: "In determining whether a particular incident
is 'newsworthy' and thus whether the privilege shields its truthful publication
from liability, the courts consider a variety of factors, including the social
value of the facts published, the depth of the article's intrusion into
ostensibly private affairs, and the extent to which the party voluntarily
acceded to a position of public notoriety." (Kapellas, supra,
at p. 36.) Applying these factors, we articulated a general rule favoring
dissemination of relevant information regarding candidates for public office,
including at least some information about their families: "Generally,
courts will be most reluctant to impede the free flow of any truthful
information that may be relevant to a candidate's qualifications for office.
Although the conduct of a candidate's children in many cases may not appear particularly
relevant to his qualifications for office, normally the public should be
permitted to determine the importance or relevance of the reported facts for
itself. If the publication does not proceed widely beyond the bounds of
propriety and reason in disclosing facts about those closely related to an
aspirant for public office, the compelling public interest in the unfettered
dissemination of information will outweigh society's interest in preserving
such individuals' rights to privacy." ( Id. at pp. 37-38, fn.
omitted.) Following the articulated principle, we held the information
disclosed, if true, was absolutely privileged. ( Id. at p. 39.)
We employed the Kapellas factors in Briscoe v. Reader's Digest
Association, Inc., supra, 4 Cal. 3d 529 (Briscoe). A magazine
article on truck hijacking included a description of such a crime the plaintiff
had committed 11 years earlier, using the plaintiff's true name. Conceding that
"reports of the facts of past crimes are newsworthy" ( id. at
p. 537), we nonetheless concluded a jury could reasonably find the plaintiff's identity
as a former hijacker to be nonnewsworthy. The identification of a rehabilitated
person as a former criminal was, under the circumstances, of "minimal
social value" ( id. at p. 541), would tend to interfere with the
state's interest in rehabilitating criminals and returning them to society, and
could be regarded as a serious intrusion on private matters ( id. at p.
542). n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 Our discussion in Briscoe largely reflects the correct view that
newsworthiness is a complete bar against liability for publication of truthful
private facts. In one passage, however, we articulated the possibly different
view that "a truthful publication is constitutionally protected if (1) it
is newsworthy and (2) it does not reveal facts so offensive as to shock the
community's notions of decency." (Briscoe, supra, 4 Cal. 3d
at p. 541.) We derived this dual standard from a dictum in Time, Inc. v.
Hill, supra, 385 U.S. at page 383, footnote 7 [87 S. Ct. at pages
539-540]. The Time footnote, however, concerned newsworthiness as a
defense to liability under a New York statute and merely suggested that such a
defense may not exist when the publication is " 'so intimate and so
unwarranted . . . as to outrage the community's notions of decency.' " (Ibid.)
Rather than establishing a requirement separate from newsworthiness, the Time
dictum appears to fit within the analysis of newsworthiness as a balancing of
intrusion against justification that we adopted in Kapellas and applied
in Briscoe.
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In Briscoe, while employing Kapellas's analysis of competing
interests, we also recognized the strong constitutional policy against
fact-dependent balancing of First Amendment rights against other interests.
"Because the categories with which we deal--private and public, newsworthy
and nonnewsworthy--have no clear profile, there is a temptation to balance
interests in ad hoc fashion in each case. Yet history teaches us that such a
process leads too often to discounting society's stake in First Amendment
rights. [Citation.] We therefore strive for as much predictability as possible
within our system of case-by-case adjudication, lest we unwittingly chill First
Amendment freedoms." (Briscoe, supra, 4 Cal. 3d at pp.
542-543, fn. 18.) We believed, however, the danger of chilling future
expression by our holding in Briscoe was slight because the facts of the
case clearly negated protection. (Ibid.) Our holding of possible
liability in that case, moreover, was expressly limited to narrow circumstances
to be established at trial: that the plaintiff, having been punished for his
past crime, was now "a rehabilitated member of society"; that
identification of him as a former criminal was not only highly offensive but
"injurious" to his efforts at leading an ordinary law-abiding life;
that the publication was made with reckless disregard for its offensiveness; and
that the defendant had no "independent justification" for printing
plaintiff's identity. (Id. at p. 543.)
In the most recent of this court's decisions on publication of private
facts, we applied the same general analysis of newsworthiness as in Briscoe
but distinguished that case on its facts. ( Forsher v. Bugliosi, supra,
26 Cal. 3d at pp. 809-813 (Forsher).) We held the defendant's book,
Helter-Skelter, did not invade the plaintiff's privacy by mentioning his name
in connection with the disappearance of an attorney who had represented a
defendant in the highly publicized Tate-LaBianca killings. Briscoe, we
observed, was "an exception to the more general rule that 'once a man has
become a public figure, or news, he remains a matter of legitimate recall to
the public mind to the end of his days.' " (Forsher, supra,
at p. 811.) As the exceptional reasons for protecting Briscoe's identity did
not apply to Forsher, we concluded the identification of Forsher in connection
with the death of an attorney formerly involved in the case was of continuing
public concern at the time of publication. ( Id. at p. 813.)
(3a) Our prior decisions have not explicitly addressed the type of
privacy invasion alleged in this case: the broadcast of embarrassing pictures
and speech of a person who, while generally not a public figure, has become
involuntarily involved in an event or activity of legitimate public concern. We
nonetheless draw guidance from those decisions, in that they articulate the
competing interests to be balanced. First, the analysis of newsworthiness does
involve courts to some degree in a normative assessment of the "social
value" of a publication. (Kapellas, supra, 1 Cal. 3d at p.
36.) All material that might attract readers or viewers is not, simply by
virtue of its attractiveness, of legitimate public interest. Second, the
evaluation of newsworthiness depends on the degree of intrusion and the extent
to which the plaintiff played an important role in public events (ibid.),
and thus on a comparison between the information revealed and the nature of the
activity or event that brought the plaintiff to public attention. "Some
reasonable proportion is . . . to be maintained between the events or activity
that makes the individual a public figure and the private facts to which
publicity is given. Revelations that may properly be made concerning a murderer
or the President of the United States would not be privileged if they were to
be made concerning one who is merely injured in an automobile accident." (
Rest.2d Torts, § 652D, com. h, p. 391.) n7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 Justice Brown, in her concurring and dissenting opinion, argues the
lawfulness or offensiveness of the news media's conduct, discussed in part II
of this opinion (post, at p. 230 et seq.), is "clearly
relevant" not only to the tort of intrusion into private places,
conversations or other matters, but also to whether the material published is
"newsworthy." (Conc. & dis. opn. of Brown, J., post, at p.
252, fn. 2.) Citing no other authority, Justice Brown attempts to find support
for her argument in Kapellas, supra, 1 Cal. 3d at page 36. The
court in Kapellas, however, did not mention or address any issue arising
from the legality of the manner in which information had been gathered. Indeed,
the facts published in Kapellas were presumed by the court "already
[to] have been matters of public record." (Id. at p. 38.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Courts balancing these interests in cases similar to this have recognized
that, when a person is involuntarily involved in a newsworthy incident, not all
aspects of the person's life, and not everything the person says or does, is
thereby rendered newsworthy. "Most persons are connected with some
activity, vocational or avocational, as to which the public can be said as a
matter of law to have a legitimate interest or curiosity. To hold as a matter
of law that private facts as to such persons are also within the area of
legitimate public interest could indirectly expose everyone's private life to
public view." ( Virgil v. Time, Inc., supra, 527 F.2d at p.
1131; accord, Gilbert v. Medical Economics Co., supra, 665 F.2d
at p. 308 (Gilbert).) This principle is illustrated in the decisions
holding that, while a particular event was newsworthy, identification of the
plaintiff as the person involved, or use of the plaintiff's identifiable image,
added nothing of significance to the story and was therefore an unnecessary invasion
of privacy. (See Briscoe, supra, 4 Cal. 3d at p. 541
[identification of plaintiff as former criminal]; Gill v. Curtis, supra
, 38 Cal. 2d at p. 279 [use of plaintiffs' photograph to illustrate article on
love]; Melvin v. Reid, supra, 112 Cal. App.. at pp. 291-292
[identification of plaintiff as former prostitute]; Barber v. Time, Inc.,
supra, 348 Mo. at pp. 1207-1208 [159 S.W.2d at pp. 295-296] [use of
plaintiff's name and photograph in article about her unusual medical
condition]; Vassiliades v. Garfinckel's Brooks Bros., supra, 492
A.2d at pp. 589-590 [use of plaintiff's photograph to illustrate presentations
on cosmetic surgery].) For the same reason, a college student's candidacy for
president of the student body did not render newsworthy a newspaper's
revelation that the student was a transsexual, where the court could find
"little if any connection between the information disclosed and [the
student's] fitness for office." (Diaz, supra, 139 Cal. App.
3d at p. 134.) Similarly, a mother's private words over the body of her slain
son as it lay in a hospital room were held nonnewsworthy despite undisputed
legitimate public interest in the subjects of gang violence and murder. ( Green
v. Chicago Tribune Co. (1996) 286 Ill.App.3d 1 [221 Ill.Dec. 342, 675
N.E.2d 249, 255-256].)
Consistent with the above, courts have generally protected the privacy of
otherwise private individuals involved in events of public interest "by
requiring that a logical nexus exist between the complaining individual and the
matter of legitimate public interest." ( Campbell v. Seabury Press
(5th Cir. 1980) 614 F.2d 395, 397.) The contents of the publication or
broadcast are protected only if they have "some substantial relevance to a
matter of legitimate public interest." (Gilbert, supra, 665
F.2d at p. 308.) Thus, recent decisions have generally tested newsworthiness
with regard to such individuals by assessing the logical relationship or nexus,
or the lack thereof, between the events or activities that brought the person
into the public eye and the particular facts disclosed. These decisions have
used a number of similar or equivalent phrases to describe the necessary
relationship. (See Cinel v. Connick (5th Cir. 1994) 15 F.3d 1338, 1346
["substantially related"]; Ross v. Midwest Communications, Inc.,
supra, 870 F.2d at p. 274 [5th Cir.: "logical nexus"]; Campbell
v. Seabury Press, supra, 614 F.2d at p. 397 [5th Cir.: "logical
nexus"]; Gilbert, supra, 665 F.2d at p. 308 [10th Cir.:
"substantial relevance"]; Lee v. Calhoun (10th Cir. 1991) 948
F.2d 1162, 1165-1166 [following Gilbert]; Haynes v. Alfred A. Knopf,
Inc., supra, 8 F.3d at p. 1233 [facts "germane" to story];
Vassiliades v. Garfinckel's Brooks Bros., supra, 492 A.2d at p.
590 ["logical nexus"].) This approach accords with our own prior
decisions, in that it balances the public's right to know against the
plaintiff's privacy interest by drawing a protective line at the point the
material revealed ceases to have any substantial connection to the subject
matter of the newsworthy report. (Cf. Kapellas, supra, 1 Cal. 3d
at p. 37 [in context of political candidacy, truthful information is generally
protected if it "may be relevant" to qualifications for office].)
This approach also echoes the Restatement commentators' widely quoted and cited
view that legitimate public interest does not include "a morbid and
sensational prying into private lives for its own sake . . . ." (
Rest.2d Torts, § 652D, com. h, p. 391, italics added; see, e.g., Sipple v.
Chronicle Publishing Co. (1984) 154 Cal. App. 3d 1040, 1048-1049
[201 Cal. Rptr. 665]; Virgil v. Time, Inc., supra, 527 F.2d at p.
1129; Gilbert, supra, 665 F.2d at pp. 307-308; see also Haynes
v. Alfred A. Knopf, Inc., supra, 8 F.3d at p. 1232 [private facts
not newsworthy "when the community has no interest in them beyond the
voyeuristic thrill of penetrating the wall of privacy that surrounds a
stranger"].)
An analysis measuring newsworthiness of facts about an otherwise private
person involuntarily involved in an event of public interest by their relevance
to a newsworthy subject matter incorporates considerable deference to reporters
and editors, avoiding the likelihood of unconstitutional interference with the
freedom of the press to report truthfully on matters of legitimate public interest.
n8 In general, it is not for a court or jury to say how a particular story is
best covered. The constitutional privilege to publish truthful material
"ceases to operate only when an editor abuses his broad discretion to
publish matters that are of legitimate public interest." (Gilbert, supra,
665 F.2d at p. 308.) By confining our interference to extreme cases, the courts
"avoid[] unduly limiting . . . the exercise of effective editorial
judgment." ( Virgil v. Time, Inc., supra, 527 F.2d at p.
1129.) Nor is newsworthiness governed by the tastes or limited interests of an
individual judge or juror; a publication is newsworthy if some reasonable
members of the community could entertain a legitimate interest in it. Our
analysis thus does not purport to distinguish among the various legitimate
purposes that may be served by truthful publications and broadcasts. As we said
in Gill v. Hearst, supra, 40 Cal. 2d at page 229, "the
constitutional guarantees of freedom of expression apply with equal force to
the publication whether it be a news report or an entertainment feature . . .
." Thus, newsworthiness is not limited to "news" in the narrow
sense of reports of current events. "It extends also to the use of names,
likenesses or facts in giving information to the public for purposes of
education, amusement or enlightenment, when the public may reasonably be
expected to have a legitimate interest in what is published." ( Rest.2d
Torts, § 652D, com. j, p. 393; accord, Gilbert, supra, 665 F.2d
at p. 308; Virgil v. Time, Inc., supra, 527 F.2d at p. 1129; see
also Carlisle v. Fawcett Publications, Inc., supra, 201 Cal. App.
2d at p. 746 [matters of legitimate public interest include, for example,
"the reproduction of past events, travelogues and biographies"]; Vassiliades
v. Garfinckel's Brooks Bros., supra, 492 A.2d at p. 589 [includes
" 'information concerning interesting phases of human activity' "].)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 Although we therefore believe our conclusions in this case accord with
the dictates of the federal Constitution, we cannot be sure without clearer
guidance from the United States Supreme Court. Unless we abandon the private
facts tort completely, we appear to be at a theoretical risk of creating unconstitutional
liability, since the high court has thus far declined to decide "whether
truthful publications may ever be subjected to civil or criminal liability
consistently with the First and Fourteenth Amendments, or to put it another
way, whether the State may ever define and protect an area of privacy free from
unwanted publicity in the press. . . ." (Cox Broadcasting Corp., supra,
420 U.S. at p. 491 [95 S. Ct. at p. 1044]; see also Florida Star, supra,
491 U.S. at p. 533 [109 S. Ct. at p. 2609] [again declining to answer that
question]; Time, Inc. v. Hill, supra, 385 U.S. at p. 383, fn. 7
[87 S. Ct. at pp. 539-540] [in false light privacy case, reserving question
whether truthful publication of offensive private facts may constitutionally
be punished, and noting a commentator's view that newsworthiness privilege may
be so " 'overpowering as virtually to swallow the [privacy] tort'
"].)
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Finally, an analysis focusing on relevance allows courts and juries to
decide most cases involving persons involuntarily involved in events of public
interest without "balanc[ing] interests in ad hoc fashion in each
case" (Briscoe, supra, 4 Cal. 3d at p. 542, fn. 18). The articulation
of standards that do not require "ad hoc resolution of the
competing interest in each . . . case" ( Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323, 343 [94 S. Ct. 2997, 3009, 41 L. Ed. 2d 789]) is favored
in areas affecting First Amendment rights, because the relative predictability
of results reached under such standards minimizes the inadvertent chilling of
protected speech, and because standards that can be applied objectively provide
a stronger shield against the unconstitutional punishment of unpopular speech.
(Ibid.; Nimmer, The Right to Speak from Times to Time: First
Amendment Theory Applied to Libel and Misapplied to Privacy (1968) 56
Cal.L.Rev. 935, 938-945 (hereafter Nimmer); see also Reno v. American Civil
Liberties Union (1997) 521 U.S. 844 [117 S. Ct. 2329, 2341, 2344-2345, 138
L. Ed. 2d 874] [Internet speech prohibitions employing undefined term
"indecent" and appealing to "community standards" of what
is "patently offensive" are, absent further narrowing of
prohibitions, unconstitutionally vague and uncertain.].)
On the other hand, no mode of analyzing newsworthiness can be applied
mechanically or without consideration of its proper boundaries. To observe that
the newsworthiness of private facts about a person involuntarily thrust into
the public eye depends, in the ordinary case, on the existence of a logical
nexus between the newsworthy event or activity and the facts revealed is not to
deny that the balance of free press and privacy interests may require a
different conclusion when the intrusiveness of the revelation is greatly
disproportionate to its relevance. Intensely personal or intimate revelations
might not, in a given case, be considered newsworthy, especially where they
bear only slight relevance to a topic of legitimate public concern. (See Kapellas,
supra, 1 Cal. 3d at pp. 37-38 [public interest in free flow of
information will outweigh interest in individual privacy "[i]f the
publication does not proceed widely beyond the bounds of propriety and reason
in disclosing facts about those closely related to an aspirant for public
office . . ."]; Haynes v. Alfred A. Knopf, Inc., supra, 8
F.3d at pp. 1234-1235 [although personal facts revealed in book at issue were
newsworthy because germane to the book's subject matter, that protection may
not extend to publication of "intimate physical details the publicizing of
which would be not merely embarrassing and painful but deeply shocking to the
average person"].) n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 Contrary to Justice Brown's characterization of the foregoing test for
newsworthiness as a "radical departure" from Kapellas, supra,
1 Cal. 3d 20 (conc. & dis. opn. of Brown, J., post, at p. 251), the
stated test is a natural adaptation of Kapellas to a different kind of
situation, one involving a private figure involuntarily caught up in a
newsworthy event. (Cf. Forsher, supra, 26 Cal. 3d at p.
812 [applying both the Kapellas factors and additional relevant
considerations].) To track the language of Kapellas, supra, 1
Cal. 3d at page 36, the "incident" in this case--i.e., the accident
and rescue--concededly is of legitimate public concern. Viewing, therefore, the
"facts published" in the context of the whole, the broadcast's
intrusion into Ruth's private life is minimal as against the substantial
relevance the facts bear to the subject matter, in particular the various
aspects of the rescue and Nurse Carnahan's responsibilities in connection
therewith. That Ruth did not "voluntarily accede[] to a position of public
notoriety" is not determinative, but only one of a "variety of
factors" to be weighed. (Ibid.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
A few words are in order at this point regarding the right of privacy
secured by article I, section 1 of the California Constitution. The Court of
Appeal, citing Hill v. National Collegiate Athletic Assn., supra,
7 Cal. 4th at pages 37-38 (Hill), equated the judicial balancing
undertaken in delineation of the common law right of privacy to the balancing
of interests this court has prescribed for evaluating claims raised under our
state's constitutional right of privacy. Defendants attack the Court of
Appeal's adoption of Hill's balancing test in the common law tort
context, arguing that under the federal Constitution newsworthiness is a
complete bar to liability, rather than merely an interest to be balanced
against private or state-protected interests.
We agree with defendants that the publication of truthful, lawfully
obtained material of legitimate public concern is constitutionally privileged
and does not create liability under the private facts tort. As discussed above,
however, a certain amount of interest-balancing does occur in deciding
whether material is of legitimate public concern, or in formulating rules for
that decision. To that extent, the Court of Appeal's analogy to Hill was
not in error.
In Hill, we held, inter alia, that article I, section 1 of the
California Constitution protects Californians against invasions of privacy by
nongovernmental as well as governmental parties. (Hill, supra, 7
Cal. 4th at pp. 15-20.) Decisions concerning the tort actions for invasion of
privacy have, in addition, sometimes linked the plaintiffs' protected interest
to that constitutional provision. (See, e.g., Miller v. National
Broadcasting Co., supra, 187 Cal. App. 3d at pp. 1490-1491
[intrusion plaintiff's interest protected by constitutional privacy provision];
Melvin v. Reid, supra, 112 Cal. App.. at p. 291 [in private facts
case predating addition of "privacy" to article I, section 1,
plaintiff deemed protected by that section's guarantee of right to pursue and
obtain happiness].) The Hill court itself sought to "draw upon the
one hundred years of legal experience surrounding the term 'privacy' " in
formulating the correct analysis of claims brought under the state
Constitution. (Hill, supra, 7 Cal. 4th at p. 27.) Thus, these two
sources of protection for privacy--the common law and the state
Constitution--are not unrelated. Nothing in Hill or our more recent
constitutional privacy cases ( American Academy of Pediatrics v. Lungren
(1997) 16 Cal. 4th 307 [66 Cal. Rptr. 2d 210, 940 P.2d 797]; Loder v. City
of Glendale (1997) 14 Cal. 4th 846 [59 Cal. Rptr. 2d 696, 927 P.2d 1200]),
however, suggests that the conceptual framework developed for resolving privacy
claims under the California Constitution was intended to supplant the common
law tort analysis or preclude its independent development. Nor did we have
occasion in those cases to address the analytical means by which a
state-created privacy right, whether of constitutional or common law origin,
may be accommodated to conflicting and superior demands of federal
constitutional interests, as for example those protected by the First
Amendment.
(4a) Turning now to the case at bar, we consider whether the
possibly private facts complained of here--broadly speaking, Ruth's appearance
and words during the rescue and evacuation--were of legitimate public interest.
If so, summary judgment was properly entered. (5a) "[B]ecause
unnecessarily protracted litigation would have a chilling effect upon the
exercise of First Amendment rights, speedy resolution of cases involving free
speech is desirable. [Citation.] Therefore, summary judgment is a favored
remedy [in such cases] . . . ." ( Good Government Group of Seal Beach,
Inc. v. Superior Court (1978) 22 Cal. 3d 672, 685 [150 Cal. Rptr. 258, 586
P.2d 572]; see also Haynes v. Alfred A. Knopf, Inc., supra, 8
F.3d at p. 1234 [Affirming summary judgment for defendants in private facts
case: "To any suggestion that the outer bounds of liability should be left
to a jury to decide we reply that in cases involving the rights protected by
the speech and press clauses of the First Amendment the courts insist on
judicial control of the jury."].) Nonetheless, the basic question raised
on a defense motion for summary judgment, and on review of such judgment, is
the same in a privacy action against media defendants as in other cases: Does
the motion record demonstrate the existence of triable issues of fact, or was
the defense entitled to judgment as a matter of law? ( Code Civ. Proc., § 437c,
subd. (c); Sipple v. Chronicle Publishing Co., supra, 54 Cal.
App. 3d at p. 1046.)
(4b) We agree at the outset with defendants that the subject matter
of the broadcast as a whole was of legitimate public concern. Automobile
accidents are by their nature of interest to that great portion of the public
that travels frequently by automobile. The rescue and medical treatment of
accident victims is also of legitimate concern to much of the public, involving
as it does a critical service that any member of the public may someday need.
The story of Ruth's difficult extrication from the crushed car, the medical
attention given her at the scene, and her evacuation by helicopter was of
particular interest because it highlighted some of the challenges facing
emergency workers dealing with serious accidents.
The more difficult question is whether Ruth's appearance and words as she
was extricated from the overturned car, placed in the helicopter and
transported to the hospital were of legitimate public concern. Pursuant to the
analysis outlined earlier, we conclude the disputed material was newsworthy as
a matter of law. One of the dramatic and interesting aspects of the story as a
whole is its focus on flight nurse Carnahan, who appears to be in charge of
communications with other emergency workers, the hospital base and Ruth, and
who leads the medical assistance to Ruth at the scene. Her work is portrayed as
demanding and important and as involving a measure of personal risk (e.g., in
crawling under the car to aid Ruth despite warnings that gasoline may be
dripping from the car). n10 The broadcast segment makes apparent that this type
of emergency care requires not only medical knowledge, concentration and
courage, but an ability to talk and listen to severely traumatized patients.
One of the challenges Carnahan faces in assisting Ruth is the confusion, pain
and fear that Ruth understandably feels in the aftermath of the accident. For
that reason the broadcast video depicting Ruth's injured physical state (which
was not luridly shown) and audio showing her disorientation and despair were substantially
relevant to the segment's newsworthy subject matter.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 Plaintiffs dispute whether there was any such fuel leak. It is
undisputed, however, that during the broadcast segment a firefighter or
paramedic tells Carnahan there is leaking gasoline, and she nevertheless crawls
under the car to minister to Ruth.
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Plaintiffs argue that showing Ruth's "intimate private, medical facts
and her suffering was not necessary to enable the public to understand
the significance of the accident or the rescue as a public event." The
standard, however, is not necessity. That the broadcast could have been
edited to exclude some of Ruth's words and images and still excite a minimum
degree of viewer interest is not determinative. Nor is the possibility that the
members of this or another court, or a jury, might find a differently edited
broadcast more to their taste or even more interesting. The courts do not, and
constitutionally could not, sit as superior editors of the press. ( Ross v.
Midwest Communications, Inc., supra, 870 F.2d at p. 275
["Exuberant judicial blue-penciling after-the-fact would blunt the quills
of even the most honorable journalists."]; Gilbert, supra,
665 F.2d at p. 308 [Liability for disclosure of private facts is limited
"to the extreme case, thereby providing the breathing space needed by the
press to properly exercise effective editorial judgment."].)
The challenged material was thus substantially relevant to the newsworthy
subject matter of the broadcast and did not constitute a "morbid and
sensational prying into private lives for its own sake." ( Rest.2d
Torts, § 652D, com. h, p. 391, italics added.) Nor can we say the broadcast
material was so lurid and sensational in emotional tone, or so intensely
personal in content, as to make its intrusiveness disproportionate to its
relevance. Under these circumstances, the material was, as a matter of law, of
legitimate public concern. Summary judgment was therefore properly entered
against Ruth on her cause of action for publication of private facts. n11 As to
Wayne, he is glimpsed only fleetingly in the broadcast video and is never
heard. The broadcast includes no images or information regarding him that could
be offensive to a reasonable person of ordinary sensibilities. Summary judgment
was therefore also proper on Wayne's cause of action for publication of private
facts.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 The United States Supreme Court has expressly reserved the question
whether the government, in cases where information has been acquired unlawfully
by a newspaper or by a source, may ever punish not only the unlawful
acquisition, but the ensuing publication as well. (Florida Star, supra,
491 U.S. at pp. 533-536 [109 S. Ct. at pp. 2609-2611].) We do not decide that
question in the present case, regarding it as going to the extent of allowable
damages for intrusion. (See fn. 18, post.)
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One might argue that, while the contents of the broadcast were of
legitimate interest in that they reflected on the nature and quality of
emergency rescue services, the images and sounds that potentially allowed
identification of Ruth as the accident victim were irrelevant and of no
legitimate public interest in a broadcast that aired some months after the accident
and had little or no value as "hot" news. (See Briscoe, supra,
4 Cal. 3d at p. 537 [While reports of the facts of "long past" crimes
are newsworthy, identification of the actor in such crimes "usually serves
little independent public purpose."].) We do not take that view. It is
difficult to see how the subject broadcast could have been edited to avoid
completely any possible identification without severely undercutting its
legitimate descriptive and narrative impact. As broadcast, the segment included
neither Ruth's full name nor direct display of her face. She was nonetheless
arguably identifiable by her first name (used in recorded dialogue), her voice,
her general appearance and the recounted circumstances of the accident (which,
as noted, had previously been published, with Ruth's full name and city of
residence, in a newspaper). n12 In a video documentary of this type, however,
the use of that degree of truthful detail would seem not only relevant, but
essential to the narrative.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 Although complete lack of identification or identifiability
would seemingly defeat a private facts claim, as there could be no injury, an
invasion of privacy does not necessarily depend on whether the plaintiff's full
name was broadcast or whether she was identifiable to all viewers. (See Haynes
v. Alfred A. Knopf, Inc., supra, 8 F.3d at p. 1233 [Even if
plaintiffs' names had been changed in nonfiction book, factual details would
have identified them "to anyone who has known [them] well for a long time
(members of their families, for example), or who knew them before they got
married; and no more is required for liability either in defamation law
[citations] or in privacy law. [Citations.]"].)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
II. Intrusion
(6a) Of the four privacy torts identified by Prosser, the tort of
intrusion into private places, conversations or matter is perhaps the one that
best captures the common understanding of an "invasion of privacy."
It encompasses unconsented-to physical intrusion into the home, hospital room
or other place the privacy of which is legally recognized, as well as
unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual
or photographic spying. (See Rest.2d Torts, § 652B, com. b., pp. 378-379, and
illustrations.) It is in the intrusion cases that invasion of privacy is most
clearly seen as an affront to individual dignity. "[A] measure of personal
isolation and personal control over the conditions of its abandonment is of the
very essence of personal freedom and dignity, is part of what our culture means
by these concepts. A man whose home may be entered at the will of another,
whose conversations may be overheard at the will of another, whose marital and
familial intimacies may be overseen at the will of another, is less of a man,
has less human dignity, on that account. He who may intrude upon another at
will is the master of the other and, in fact, intrusion is a primary weapon of
the tyrant." (Bloustein, Privacy as an Aspect of Human Dignity: An
Answer to Dean Prosser (1964) 39 N.Y.U. L.Rev. 962, 973-974, fn.
omitted.)
Despite its conceptual centrality, the intrusion tort has received less
judicial attention than the private facts tort, and its parameters are less
clearly defined. The leading California decision is Miller v. National
Broadcasting Co., supra, 187 Cal. App. 3d 1463 (Miller). Miller,
which like the present case involved a news organization's videotaping the work
of emergency medical personnel, adopted the Restatement's formulation of the
cause of action: "One who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private affairs or concerns,
is subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person." ( Rest.2d
Torts, § 652B; Miller, supra, 187 Cal. App. 3d at p. 1482.)
As stated in Miller and the Restatement, therefore, the action for intrusion
has two elements: (1) intrusion into a private place, conversation or matter,
(2) in a manner highly offensive to a reasonable person. We consider the
elements in that order.
We ask first whether defendants "intentionally intrude[d], physically
or otherwise, upon the solitude or seclusion of another," that is, into a
place or conversation private to Wayne or Ruth. ( Rest.2d Torts, § 652B; Miller,
supra, 187 Cal. App. 3d at p. 1482.) "[T]here is no liability for
the examination of a public record concerning the plaintiff, . . . [or] for
observing him or even taking his photograph while he is walking on the public
highway . . . ." ( Rest.2d Torts, § 652B, com. c., pp. 379-380; see, e.g.,
Aisenson v. American Broadcasting Co. (1990) 220 Cal. App. 3d 146,
162-163 [269 Cal. Rptr. 379] [where judge who was subject of news story was
filmed from public street as he walked from his home to his car, any invasion
of privacy was "extremely de minimis"]; see also 1 McCarthy, The
Rights of Publicity and Privacy (1997) § 5.10[A][2], pp. 5-111 to 5-113
[collecting cases].) To prove actionable intrusion, the plaintiff must show the
defendant penetrated some zone of physical or sensory privacy surrounding, or
obtained unwanted access to data about, the plaintiff. The tort is proven only
if the plaintiff had an objectively reasonable expectation of seclusion or
solitude in the place, conversation or data source. ( Rest.2d Torts, § 652B,
com. c., p. 379; see, e.g., PETA v. Bobby Berosini, Ltd. (1995) 111 Nev.
615 [895 P.2d 1269, 1280-1281] [plaintiff animal trainer had no expectation of
seclusion or solitude in backstage preparation area]; Frankel v. Warwick
Hotel (E.D.Pa. 1995) 881 F. Supp. 183, 188 [father's meddling in son's
marriage not intrusion where there was no "physical or sensory penetration
of a person's zone of seclusion"].)
(7a) Cameraman Cooke's mere presence at the accident scene and
filming of the events occurring there cannot be deemed either a physical or
sensory intrusion on plaintiffs' seclusion. Plaintiffs had no right of
ownership or possession of the property where the rescue took place, nor any
actual control of the premises. Nor could they have had a reasonable
expectation that members of the media would be excluded or prevented from
photographing the scene; for journalists to attend and record the scenes of
accidents and rescues is in no way unusual or unexpected. (Cf. Pen. Code, §
409.5, subd. (d), 409.6, subd. (d) [exempting press representatives from
certain emergency closure orders].)
(8a) Two aspects of defendants' conduct, however, raise triable
issues of intrusion on seclusion. First, a triable issue exists as to whether
both plaintiffs had an objectively reasonable expectation of privacy in the
interior of the rescue helicopter, which served as an ambulance. Although the
attendance of reporters and photographers at the scene of an accident is to be
expected, we are aware of no law or custom permitting the press to ride in
ambulances or enter hospital rooms during treatment without the patient's
consent. (See Noble v. Sears, Roebuck & Co., supra, 33 Cal.
App. 3d at p. 660 [accepting, subject to proof at trial, intrusion plaintiff's
theory she had "an exclusive right of occupancy of her hospital room"
as against investigator]; Miller, supra, 187 Cal. App. 3d at pp.
1489-1490 [Rejecting intrusion defendant's claim that plaintiff consented to
media's entry into home by calling paramedics: "One seeking emergency
medical attention does not thereby 'open the door' for persons without any clearly
identifiable and justifiable official reason who may wish to enter the premises
where the medical aid is being administered."].) Other than the two
patients and Cooke, only three people were present in the helicopter, all Mercy
Air staff. As the Court of Appeal observed, "[i]t is neither the custom
nor the habit of our society that any member of the public at large or its
media representatives may hitch a ride in an ambulance and ogle as paramedics
care for an injured stranger." (See also Green v. Chicago Tribune Co.,
supra, 675 N.E.2d at p. 252 [hospital room not public place]; Barber
v. Time, Inc., supra, 159 S.W.2d at p. 295 ["Certainly, if
there is any right of privacy at all, it should include the right to obtain
medical treatment at home or in a hospital . . . without personal
publicity."].)
(9a) Second, Ruth was entitled to a degree of privacy in her
conversations with Carnahan and other medical rescuers at the accident scene,
and in Carnahan's conversations conveying medical information regarding Ruth to
the hospital base. Cooke, perhaps, did not intrude into that zone of privacy
merely by being present at a place where he could hear such conversations with
unaided ears. But by placing a microphone on Carnahan's person, amplifying and
recording what she said and heard, defendants may have listened in on
conversations the parties could reasonably have expected to be private.
The Court of Appeal held plaintiffs had no reasonable expectation of
privacy at the accident scene itself because the scene was within the sight and
hearing of members of the public. The summary judgment record, however, does
not support the Court of Appeal's conclusion; instead, it reflects, at the
least, the existence of triable issues as to the privacy of certain
conversations at the accident scene, as in the helicopter. The videotapes
(broadcast and raw footage) show the rescue did not take place "on a
heavily traveled highway," as the Court of Appeal stated, but in a ditch
many yards from and below the rural superhighway, which is raised somewhat at
that point to bridge a nearby crossroad. From the tapes it appears unlikely the
plaintiffs' extrication from their car and medical treatment at the scene could
have been observed by any persons who, in the lower court's words, "passed
by" on the roadway. Even more unlikely is that any passersby on the road
could have heard Ruth's conversation with Nurse Carnahan or the other rescuers.
n13
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13 Nor are we able to discern on the tapes any "crowd of onlookers
peering down at the rescue scene," as did the Court of Appeal. In the
broadcast segment, when the helicopter lands at the accident scene, the camera,
from a distance, captures three or four people standing on the edge of the
highway, looking in the direction of the accident scene. Whether these people
are connected to the rescue effort (emergency vehicles are parked on the
highway shoulder near them) or what they are able to see from their vantage
point (the overturned vehicle is about 50 feet from, and well below, the
highway, with a number of trees in between) is unclear. On the tape of raw
footage, Cooke at one point climbs the embankment and films from the shoulder
in the direction of the rescue scene. The car is not visible from that vantage
point; it comes into view only as Cooke, still filming, descends the
embankment.
As to those gathered at the rescue site itself, it is unclear from the
record, and therefore unripe for decision on summary judgment, whether any of
those present--other than cameraman Cooke--were mere spectators. Most were
clearly law enforcement personnel, firefighters or paramedics. A few
individuals shown on tape are not in uniform, but at times during Ruth's and
Wayne's extrication even some of these persons are seen assisting the rescuers,
for example by holding an intravenous fluids bottle. Finally, it is unclear
from the tapes if anyone other than those involved was able to hear Ruth's
conversation with the nurse and paramedics.
Both parties have briefed the correctness of the Court of Appeal's
assessment of the accident scene's privacy, although defendants also contend
this issue is not within the original scope of our review (Cal. Rules of Court,
rule 29.3(c)). Whether or not defendants are correct that this question was not
reasonably comprehended in the issues raised in the petition for review, we
have found it necessary to address this point in order to state and decide
fairly and accurately the legal questions inherent in the case. (Cal. Rules of
Court, rule 29.2(a).)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Whether Ruth expected her conversations with Nurse Carnahan or the other
rescuers to remain private and whether any such expectation was reasonable are,
on the state of the record before us, questions for the jury. We note, however,
that several existing legal protections for communications could support the
conclusion that Ruth possessed a reasonable expectation of privacy in her
conversations with Nurse Carnahan and the other rescuers. A patient's
conversation with a provider of medical care in the course of treatment,
including emergency treatment, carries a traditional and legally
well-established expectation of privacy. (See Evid. Code, § 990- 1007 [physician-patient
privilege]; Civ. Code, § 56- 56.37 [Confidentiality of Medical Information
Act].) n14 (10a) Moreover, California's Invasion of Privacy Act ( Pen.
Code, § 630- 637.6; see Ribas v. Clark (1985) 38 Cal. 3d 355, 359 [212
Cal. Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417] (Ribas)) prohibits the
recording of any "confidential communication" without the consent of
all parties thereto. ( Pen. Code, § 632, subd. (a).)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n14 We need not determine whether any violation of the Confidentiality of
Medical Information Act occurred here. Mercy Air's liability for such a
violation is no longer at issue, and plaintiffs did not plead any such
violation by the media defendants. On remand, however, the question whether the
defendants acted in concert with Mercy Air to illegally reveal confidential
medical information may be relevant to plaintiffs' intrusion claim.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
A confidential communication, for purposes of Penal Code section 632
(hereafter section 632), need not fall within an evidentiary privilege. Rather,
the term includes "any communication carried on in circumstances as may
reasonably indicate that any party to the communication desires it to be
confined to the parties thereto, but excludes a communication made in a public
gathering . . . or in any other circumstance in which the parties to the
communication may reasonably expect that the communication may be overheard or recorded."
(§ 632, subd. (c).) The Invasion of Privacy Act, as we explained in Ribas,
provides legal recognition of the individual's reasonable expectation of
privacy against unauthorized interception and recording of confidential
conversations: "While one who imparts private information risks the
betrayal of his confidence by the other party, a substantial distinction has
been recognized between the secondhand repetition of the contents of a
conversation and its simultaneous dissemination to an unannounced second
auditor, whether that auditor be a person or a mechanical device. (Warden v.
Kahn [(1979)] 99 Cal. App. 3d 805, 813-814 [160 Cal. Rptr. 471].) [P] . . .
[S]uch secret monitoring denies the speaker an important aspect of privacy of
communication--the right to control the nature and extent of the firsthand
dissemination of his statements." (Ribas, supra, 38 Cal. 3d
at pp. 360-361.) n15
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n15 Neither in Ribas nor in any other case have we had occasion to
decide whether a communication may be deemed confidential under Penal Code
section 632, subdivision (c) when a party reasonably expects and desires that
the conversation itself will not be directly overheard by a nonparticipant or recorded
by any person, participant or nonparticipant, but does not reasonably expect
that the contents of the communication will remain confidential to the parties.
(Compare Coulter v. Bank of America (1994) 28 Cal. App. 4th 923, 929 [33
Cal. Rptr. 2d 766] and Frio v. Superior Court (1988) 203 Cal. App. 3d
1480, 1488-1490 [250 Cal. Rptr. 819] [both holding section 632 requires only
that a party to the conversation reasonably expects it to be private from
recording or eavesdropping] with O'Laskey v. Sortino (1990) 224 Cal.
App. 3d 241, 248 [273 Cal. Rptr. 674] [referring to expectation the
conversation would not be "divulged" to third party] and Deteresa
v. American Broadcasting Companies, Inc. (9th Cir. 1997) 121 F.3d 460,
463-464 [reading O'Laskey v. Sortino, supra, as requiring
expectation of secrecy of contents and predicting this court would adopt such
interpretation of section 632].) We need not resolve that issue here, because
under either interpretation of section 632, subdivision (c) triable issues exist
whether Ruth had a reasonable expectation of privacy in her communications to
medical personnel.
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Ruth's claim, of course, does not require her to prove a statutory
violation, only to prove that she had an objectively reasonable expectation of
privacy in her conversations. (9b) Whether the circumstances of Ruth's
extrication and helicopter rescue would reasonably have indicated to
defendants, or to their agent, Cooke, that Ruth would desire and expect her
communications to Carnahan and the other rescuers to be confined to them alone,
and therefore not to be electronically transmitted and recorded, is a triable
issue of fact in this case. As observed earlier, whether anyone present (other than
Cooke) was a mere observer, uninvolved in the rescue effort, is unclear from
the summary judgment record. Also unclear is who, if anyone, could overhear
conversations between Ruth and Carnahan, which were transmitted by a microphone
on Carnahan's person, amplified and recorded by defendants. We cannot say, as a
matter of law, that Cooke should not have perceived he might be intruding on a
confidential communication when he recorded a seriously injured patient's
conversations with medical personnel. n16
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n16 The trial court denied, on grounds of delay, plaintiffs' request to
amend their complaint to allege a violation of section 632. The Court of Appeal
affirmed the ruling and, as plaintiffs did not petition for review of that
decision, its merits are not before us. As the Court of Appeal observed,
however, Ruth's contention Cooke illegally recorded her conversations with Carnahan
is comprehended in the complaint's claim of intrusion and the substantive law
relating to that claim.
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(11a) We turn to the second element of the intrusion tort,
offensiveness of the intrusion. In a widely followed passage, the Miller
court explained that determining offensiveness requires consideration of all
the circumstances of the intrusion, including its degree and setting and the
intruder's "motives and objectives." (Miller, supra,
187 Cal. App. 3d at pp. 1483-1484; cited, e.g., in Hill, supra, 7
Cal. 4th at p. 26; Sacramento County Deputy Sheriffs' Assn. v. County of
Sacramento (1996) 51 Cal. App. 4th 1468, 1487 [59 Cal. Rptr. 2d 834]; Magenis
v. Fisher Broadcasting, Inc. (1990) 103 Or.App. 555 [798 P.2d 1106, 1110];
and PETA v. Bobby Berosini, Ltd., supra, 895 P.2d at p. 1282.)
The Miller court concluded that reasonable people could regard the
camera crew's conduct in filming a man's emergency medical treatment in his
home, without seeking or obtaining his or his wife's consent, as showing
"a cavalier disregard for ordinary citizens' rights of privacy" and,
hence, as highly offensive. (Miller, supra, 187 Cal. App. 3d at
p. 1484.)
We agree with the Miller court that all the circumstances of an
intrusion, including the motives or justification of the intruder, are
pertinent to the offensiveness element. n17 Motivation or justification becomes
particularly important when the intrusion is by a member of the print or
broadcast press in the pursuit of news material. Although, as will be discussed
more fully later, the First Amendment does not immunize the press from
liability for torts or crimes committed in an effort to gather news ( Cohen
v. Cowles Media Co. (1991) 501 U.S. 663, 669 [111 S. Ct. 2513, 2518, 115 L.
Ed. 2d 586]; Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245, 249 (Dietemann);
Miller, supra, 187 Cal. App. 3d at p. 1492), the constitutional
protection of the press does reflect the strong societal interest in effective
and complete reporting of events, an interest that may--as a matter of tort
law--justify an intrusion that would otherwise be considered offensive. While
refusing to recognize a broad privilege in newsgathering against application of
generally applicable laws, the United States Supreme Court has also observed
that "without some protection for seeking out the news, freedom of the
press could be eviscerated." ( Branzburg v. Hayes (1972) 408 U.S.
665, 681 [92 S. Ct. 2646, 2656, 33 L. Ed. 2d 626]; see also Nicholson v.
McClatchy Newspapers (1986) 177 Cal. App. 3d 509, 519-520 [223 Cal. Rptr.
58].)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n17 Among other factors, an intrusion may be deemed more offensive to the
extent the intruder's behavior created a risk that the target's efforts to
evade or resist the intrusion would lead to physical harm to the intruder, the
target or others.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In deciding, therefore, whether a reporter's alleged intrusion into private
matters (i.e., physical space, conversation or data) is "offensive"
and hence actionable as an invasion of privacy, courts must consider the extent
to which the intrusion was, under the circumstances, justified by the
legitimate motive of gathering the news. Information-collecting techniques that
may be highly offensive when done for socially unprotected reasons--for
purposes of harassment, blackmail or prurient curiosity, for example--may not
be offensive to a reasonable person when employed by journalists in pursuit of
a socially or politically important story. Thus, for example, "a
continuous surveillance which is tortious when practiced by a creditor upon a
debtor may not be tortious when practiced by media representatives in a
situation where there is significant public interest [in discovery of the
information sought]." (Hill, Defamation and Privacy Under the First
Amendment (1976) 76 Colum. L.Rev. 1205, 1284, fn. omitted.)
The mere fact the intruder was in pursuit of a "story" does not,
however, generally justify an otherwise offensive intrusion; offensiveness
depends as well on the particular method of investigation used. At one extreme,
" 'routine . . . reporting techniques,' " such as asking questions of
people with information ("including those with confidential or restricted
information") could rarely, if ever, be deemed an actionable intrusion. ( Nicholson
v. McClatchy Newspapers, supra, 177 Cal. App. 3d at p. 519; accord, Wolfson
v. Lewis (E.D.Pa. 1996) 924 F. Supp. 1413, 1417.) At the other extreme,
violation of well-established legal areas of physical or sensory
privacy--trespass into a home or tapping a personal telephone line, for
example--could rarely, if ever, be justified by a reporter's need to get the
story. Such acts would be deemed highly offensive even if the information
sought was of weighty public concern; they would also be outside any protection
the Constitution provides to newsgathering. ( Cohen v. Cowles Media Co.,
supra, 501 U.S. at p. 669 [111 S. Ct. at p. 2518]; Dietemann, supra,
449 F.2d at p. 249.)
Between these extremes lie difficult cases, many involving the use of
photographic and electronic recording equipment. Equipment such as hidden
cameras and miniature cordless and directional microphones are powerful
investigative tools for newsgathering, but may also be used in ways that
severely threaten personal privacy. California tort law provides no bright line
on this question; each case must be taken on its facts.
(12a) On this summary judgment record, we believe a jury could find
defendants' recording of Ruth's communications to Carnahan and other rescuers,
and filming in the air ambulance, to be " 'highly offensive to a
reasonable person.' " (Miller, supra, 187 Cal. App. 3d at p.
1482, italics omitted.) With regard to the depth of the intrusion (id.
at p. 1483), a reasonable jury could find highly offensive the placement of a
microphone on a medical rescuer in order to intercept what would otherwise be
private conversations with an injured patient. In that setting, as defendants
could and should have foreseen, the patient would not know her words were being
recorded and would not have occasion to ask about, and object or consent to,
recording. Defendants, it could reasonably be said, took calculated advantage
of the patient's "vulnerability and confusion." (Id. at p.
1484.) Arguably, the last thing an injured accident victim should have to worry
about while being pried from her wrecked car is that a television producer may
be recording everything she says to medical personnel for the possible
edification and entertainment of casual television viewers.
For much the same reason, a jury could reasonably regard entering and riding
in an ambulance--whether on the ground or in the air--with two seriously
injured patients to be an egregious intrusion on a place of expected seclusion.
Again, the patients, at least in this case, were hardly in a position to keep
careful watch on who was riding with them, or to inquire as to everyone's
business and consent or object to their presence. A jury could reasonably
believe that fundamental respect for human dignity requires the patients'
anxious journey be taken only with those whose care is solely for them and out
of sight of the prying eyes (or cameras) of others.
Nor can we say as a matter of law that defendants' motive--to gather usable
material for a potentially newsworthy story--necessarily privileged their
intrusive conduct as a matter of common law tort liability. A reasonable jury
could conclude the producers' desire to get footage that would convey the
"feel" of the event--the real sights and sounds of a difficult
rescue--did not justify either placing a microphone on Nurse Carnahan or
filming inside the rescue helicopter. Although defendants' purposes could
scarcely be regarded as evil or malicious (in the colloquial sense), their
behavior could, even in light of their motives, be thought to show a highly
offensive lack of sensitivity and respect for plaintiffs' privacy. (Miller,
supra, 187 Cal. App. 3d at p. 1484.) A reasonable jury could find that
defendants, in placing a microphone on an emergency treatment nurse and
recording her conversation with a distressed, disoriented and severely injured
patient, without the patient's knowledge or consent, acted with highly
offensive disrespect for the patient's personal privacy comparable to, if not
quite as extreme as, the disrespect and insensitivity demonstrated in Miller.
(13a) Turning to the question of constitutional protection for
newsgathering, one finds the decisional law reflects a general rule of nonprotection:
the press in its newsgathering activities enjoys no immunity or exemption from
generally applicable laws. ( Cohen v. Cowles Media Co., supra,
501 U.S. at pp. 669-670 [111 S. Ct. at pp. 2518-2519]; see Branzburg v.
Hayes, supra, 408 U.S. at pp. 680-695 [92 S. Ct. at pp. 2656-2664]
[extensive discussion, concluding press enjoys no special immunity from
questioning regarding sources with information on criminal activities under
investigation by grand jury]; Pell v. Procunier (1974) 417 U.S. 817,
832-835 [94 S. Ct. 2800, 2809-2810, 41 L. Ed. 2d 495] [no special right of
access to state prisoners for interviews]; Dietemann, supra, 449
F.2d at p. 249 [First Amendment is not a license for electronic intrusion;
investigative journalism can be successfully practiced without secret
recording]; Shevin v. Sunbeam Television Corp. (Fla. 1977) 351 So.2d
723, 725-727 [under Branzburg, Pell, and Dietemann,
Florida statute prohibiting nonconsensual recording of private conversations
may constitutionally be applied to news reporters].)
"It is clear that the First Amendment does not invalidate every
incidental burdening of the press that may result from the enforcement of civil
and criminal statutes of general applicability. Under prior cases, otherwise
valid laws serving substantial public interests may be enforced against the
press as against others, despite the possible burden that may be imposed."
( Branzburg v. Hayes, supra, 408 U.S. at pp. 682-683 [92
S. Ct. at p. 2657].) California's intrusion tort and section 632 are both laws
of general applicability. They apply to all private investigative activity,
whatever its purpose and whoever the investigator, and impose no greater
restrictions on the media than on anyone else. (If anything, the media enjoy
some degree of favorable treatment under the California intrusion tort,
as a reporter's motive to discover socially important information may reduce
the offensiveness of the intrusion.) These laws serve the undisputedly
substantial public interest in allowing each person to maintain an area of
physical and sensory privacy in which to live. (12b) Thus, defendants
enjoyed no constitutional privilege, merely by virtue of their status as
members of the news media, to eavesdrop in violation of section 632 or
otherwise to intrude tortiously on private places, conversations or
information.
(13b) Courts have impliedly recognized that a generally applicable
law might, under some circumstances, impose an "impermissible burden"
on newsgathering (Miller, supra, 187 Cal. App. 3d at p. 1493);
such a burden might be found in a law that, as applied to the press, would
result in "a significant constriction of the flow of news to the
public" and thus "eviscerate[]" the freedom of the press. ( Branzburg
v. Hayes, supra, 408 U.S. at pp. 693, 681 [92 S. Ct. at pp.
2663, 2656-2657].) No basis exists, however, for concluding that either section
632 or the intrusion tort places such a burden on the press, either in general
or under the circumstances of this case. The conduct of journalism does not
depend, as a general matter, on the use of secret devices to record private
conversations. (Accord, Dietemann, supra, 449 F.2d at p. 249
["We strongly disagree . . . that hidden mechanical contrivances are
'indispensable tools' of newsgathering. Investigative reporting is an ancient
art; its successful practice long antecedes the invention of miniature cameras
and electronic devices."]; Shevin v. Sunbeam Television Corp., supra,
351 So.2d at p. 727 ["News gathering is an integral part of news
dissemination, but hidden mechanical contrivances are not indispensable tools
of news gathering."].) More specifically, nothing in the record or
briefing here suggests that reporting on automobile accidents and medical
rescue activities depends on secretly recording accident victims' conversations
with rescue personnel or on filming inside an occupied ambulance. Thus, if any
exception exists to the general rule that "the First Amendment does not
guarantee the press a constitutional right of special access to information not
available to the public generally" ( Branzburg v. Hayes, supra,
408 U.S. at p. 684 [92 S. Ct. at p. 2658]), such exception is inapplicable
here. n18
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n18 Defendants urge us to hold that any damages for intrusion do not
include compensation for injury resulting from the publication of material
gathered through intrusion. The only intrusion case defendants cite on this
point is against them. (Dietemann, supra, 449 F.2d at pp. 249-250
[allowing publication damages in intrusion case]; see generally, Hill, Defamation
and Privacy Under the First Amendment, supra, 76 Colum. L.Rev. at
pp. 1281-1286 [discussing various approaches].) We do not reach the question,
as the measure of plaintiffs' damages is not before us on this appeal from
summary judgment in favor of the defense.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As should be apparent from the above discussion, the constitutional
protection accorded newsgathering, if any, is far narrower than the protection
surrounding the publication of truthful material; consequently, the fact that a
reporter may be seeking "newsworthy" material does not in itself
privilege the investigatory activity. The reason for the difference is simple:
The intrusion tort, unlike that for publication of private facts, does not
subject the press to liability for the contents of its publications.
Newsworthiness, as we stated earlier, is a complete bar to liability for
publication of private facts and is evaluated with a high degree of deference
to editorial judgment. The same deference is not due, however, when the issue
is not the media's right to publish or broadcast what they choose, but their
right to intrude into secluded areas or conversations in pursuit of publishable
material. At most, the Constitution may preclude tort liability that would
"place an impermissible burden on newsgatherers" (Miller, supra,
187 Cal. App. 3d at p. 1493) by depriving them of their " 'indispensable
tools' " (Dietemann, supra, 449 F.2d at p. 249).
Defendants urge a rule more protective of press investigative activity.
Specifically, they seek a holding that "when intrusion claims are brought
in the context of newsgathering conduct, that conduct be deemed protected so
long as (1) the information being gathered is about a matter of legitimate
concern to the public and (2) the underlying conduct is lawful (i.e., was
undertaken without fraud, trespass, etc.)." Neither tort law nor
constitutional precedent and policy support such a broad privilege. Miller,
Dietemann, and Wolfson v. Lewis, supra, 924 F. Supp. 1413,
were all cases in which the reporters and photographers were acting in pursuit
of newsworthy material, but were held to have tortiously intruded on the
plaintiffs' privacy because their conduct was highly offensive to a reasonable
person, not because they had committed any independent crime or tort. n19 (See
also Baugh v. CBS, Inc. (N.D.Cal. 1993) 828 F. Supp. 745, 757 [intrusion
tort does not require existence of technical trespass]; KOVR-TV, Inc. v.
Superior Court (1995) 31 Cal. App. 4th 1023, 1030-1032 [37 Cal. Rptr. 2d
431] [no newsgathering defense to claim of intentional infliction of emotional
harm for television reporter's telling small children their neighbors had been
killed while filming their shocked reaction, even if reporter hoped the
children's reaction would be " 'newsworthy,' e.g., suitable to redeem a
promise of 'film at eleven' "]; Rest.2d Torts, § 652B, illus. 1, p. 379
["A, a woman, is sick in a hospital room with a rare disease that arouses
public curiosity. B, a newspaper reporter, calls her on the telephone and asks
for an interview, but she refuses to see him. B then goes to the hospital,
enters A's room and over her objection takes her photograph. B has invaded A's
privacy."].)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n19 In Miller the camera crew's entry into the Miller home was also
deemed a trespass (Miller, supra, 187 Cal. App. 3d at p. 1480),
but the court's discussion of the intrusion tort does not depend on this fact.
(Id. at pp. 1482-1484.)
In Dietemann, supra, 449 F.2d 245, reporters for Life
Magazine gained consensual access to the home office of a quack doctor, where
they secretly photographed him and recorded his remarks as he purportedly
diagnosed a medical condition of one of the reporters. (449 F.2d at p. 246.) The
federal court, applying California law, concluded the facts showed an invasion
of privacy. ( Id. at pp. 247-249.) Presumably because a peaceable entry
by consent does not constitute trespass under California law (see 5 Witkin,
Summary of Cal. Law (9th ed. 1988) Torts, § 607, p. 706), no question of
liability for trespass arose in Dietemann.
In Wolfson v. Lewis, supra, 924 F. Supp. 1413,
television reporters doing a story on the high salaries paid to executives of
health care companies physically pursued a family that included three such
executives in an effort to get "ambush" interviews with them, and
attempted to intercept with a directional microphone conversations they had at
a family home. The federal district court granted preliminary injunctive relief
against such behavior, finding the plaintiffs likely to prevail on their claim
the reporters' harassment and spying was a highly offensive intrusion into
their privacy. ( Id. at pp. 1432-1434.) The court expressly stated its
finding of a tortious intrusion was not based on any alleged trespass. ( Id.
at p. 1434.) Nor was the court's finding of a tortious intrusion logically
dependent on violation of state anti-eavesdropping statutes, although two such
statutes were cited in support of the privacy element of the intrusion tort (in
the same manner as we have cited section 632). (924 F. Supp. at p. 1434.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As to constitutional policy, we repeat that the threat of infringement on
the liberties of the press from intrusion liability is minor compared with the
threat from liability for publication of private facts. Indeed, the distinction
led one influential commentator to assert flatly that "[i]ntrusion does
not raise first amendment difficulties since its perpetration does not involve
speech or other expression." (Nimmer, supra, 56 Cal.L.Rev. at p.
957.) Such a broad statement is probably not warranted; a liability rule, for
example, that punished as intrusive a reporter's merely asking questions about
matters an organization or person did not choose to publicize would likely be
deemed an impermissible restriction on press freedom. But no constitutional
precedent or principle of which we are aware gives a reporter general license
to intrude in an objectively offensive manner into private places,
conversations or matters merely because the reporter thinks he or she may
thereby find something that will warrant publication or broadcast.
CONCLUSION
The claim of these accident victims that their privacy was invaded by the
production and broadcast of a documentary segment on their rescue raises
questions about how the news media obtain their material (the intrusion claim),
as well as about what they choose to publish or broadcast (the publication of private
facts claim). Largely for constitutional reasons, the paths we have taken in
analyzing these two privacy claims have diverged and led to different results.
The broadcast details of Ruth's rescue of which she complains were, as a
matter of law, of legitimate public concern because they were substantially
relevant to the newsworthy subject of the piece and their intrusiveness was not
greatly disproportionate to their relevance. That analytical path is dictated
by the danger of the contrary approach; to allow liability because this court,
or a jury, believes certain details of the story as broadcast were not
important or necessary to the purpose of the documentary, or were in poor taste
or overly sensational in impact, would be to assert impermissible supervisory
power over the press.
The intrusion claim calls for a much less deferential analysis. In contrast
to the broad privilege the press enjoys for publishing truthful, newsworthy
information in its possession, the press has no recognized constitutional
privilege to violate generally applicable laws in pursuit of material. Nor,
even absent an independent crime or tort, can a highly offensive intrusion into
a private place, conversation, or source of information generally be justified
by the plea that the intruder hoped thereby to get good material for a news
story. Such a justification may be available when enforcement of the
tort or other law would place an impermissibly severe burden on the press, but
that condition is not met in this case.
In short, the state may not intrude into the proper sphere of the news
media to dictate what they should publish and broadcast, but neither may the
media play tyrant to the people by unlawfully spying on them in the name of
newsgathering. Summary judgment for the defense was proper as to plaintiffs'
cause of action for publication of private facts (the second cause of action),
but improper as to the cause of action for invasion of privacy by intrusion
(the first cause of action).
DISPOSITION
The judgment of the Court of Appeal is affirmed except insofar as the Court
of Appeal reversed and remanded for further proceedings on Ruth Shulman's cause
of action for publication of private facts.
George, C. J., and Kennard, J., concurred.
CONCURBY: KENNARD; CHIN (In Part); BROWN (In Part)
CONCUR: KENNARD, J.,
Concurring.--Applying existing California tort law, the plurality opinion
holds that to establish a cause of action for invasion of privacy by
publication of private facts the plaintiff must show that a private fact was
publicly disclosed, that the disclosure would be offensive and objectionable to
a reasonable person, and that the private fact was not newsworthy. I agree that
here summary judgment was properly entered against plaintiffs on that cause of
action. There is, however, a tension between the plurality opinion's rule of
liability for publication of private facts and some aspects of the United
States Supreme Court's current First Amendment jurisprudence. In my view, the
potential clash in this area of law between personal privacy interests and the
First Amendment's guarantee of freedom of speech and of the press warrants a
more detailed examination than the plurality opinion has undertaken.
Privacy is a fundamental constituent of human identity and of the
communities we inhabit. (See Post, The Social Foundations of Privacy:
Community and Self in the Common Law Tort (1989) 77 Cal. L.Rev. 957.)
Preserving a sphere of private thought, speech, and action, and controlling who
are to be let into that sphere and the conditions under which they may enter,
is an essential part of human dignity and autonomy. We define ourselves by
controlling what we disclose to the world and what we preserve from public
view. In an earlier age, privacy was more easily maintained, for the social and
physical barriers that protected it were either prohibitively costly or
physically impossible to breach. Not so today, when the social and physical
barriers that formerly protected our privacy are dissolving in the face of technological
and economic changes. ( Loder v. City of Glendale (1997) 14 Cal. 4th
846, 921 [59 Cal. Rptr. 2d 696, 927 P.2d 1200] (conc. & dis. opn. of
Kennard, J.).) Personal information that previously could only have been
gathered at great expense, or could not have been gathered at all, is now
routinely collected, analyzed, packaged, and distributed instantaneously and at
trivial cost. Our secrets, great or small, can now without our knowledge hurtle
around the globe at the speed of light, preserved indefinitely for future
recall in the electronic limbo of computer memories. These technological and
economic changes in turn have made legal barriers more essential to the
preservation of our privacy.
The free flow of truthful information, however, is also a fundamental value
of our society, embodied in the First Amendment to the federal Constitution. As
the plurality opinion notes, the United States Supreme Court has not yet
attempted to fashion a general rule striking a balance between our competing
interests in preserving a sphere of personal privacy and in unfettered
publication of truthful information. Because of the complexities of the
problem, crafting a general rule in this area would not be an easy task. The
authors of two prominent constitutional law treatises, for example, take
opposite views on whether the First Amendment permits a cause of action for
truthful publication of private facts. Professors Rotunda and Nowak would not
allow the cause of action: "[I]n light of later constitutional cases, and
given the general [First Amendment] rationale articulated by the Supreme Court
over the years, the state should always recognize that truth is a defense in a
defamation or right of privacy action . . . ." (4 Rotunda & Nowak,
Treatise on Constitutional Law (2d ed. 1992) § 20.36, p. 231.) Professor Tribe,
on the other hand, takes the view that the First Amendment permits the cause of
action: "[W]hen government acts to limit the untrammeled gathering,
recording, or dissemination of data or statements about an individual, of
course it inhibits speech--but it also vindicates the individual's ability to
control what others are told about his or her life. Such control constitutes a
central part of the right to shape the 'self' that any individual presents to
the world." (Tribe, American Constitutional Law (2d ed. 1988) § 12-14, p.
887.)
The plurality opinion tries to balance these two values by using the
concept of newsworthiness to define a general limit on the scope of tort
liability for disclosure of private facts; it acknowledges only a
"theoretical risk" that the tort would intrude on expression
protected by the First Amendment. (Plur. opn., ante, at p. 225, fn. 8.)
I am not so sanguine.
The "newsworthiness" rule of liability may raise a number of
concerns under at least some strains of the United States Supreme Court's
current First Amendment doctrine. First, turning as it does on an inevitably
subjective determination of whether the public's interest in a story is
"legitimate" or "morbid," the "newsworthiness"
rule suppresses truthful speech on the basis of its content--the central evil
of censorship. Content-based restrictions on speech bear a heavy burden, for
"the point of all speech protection . . . is to shield just those choices
of content that in someone's eyes are misguided, or even hurtful." ( Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995)
515 U.S. 557, 574 [115 S. Ct. 2338, 2347-2348, 132 L. Ed. 2d 487].) As Hurley
explains: "The very idea that a noncommercial speech restriction be used
to produce thoughts and statements acceptable to some groups or, indeed, all
people, grates on the First Amendment, for it amounts to nothing less than a
proposal to limit speech in the service of orthodox expression. The Speech
Clause has no more certain antithesis." ( Id. at p. 579 [115 S. Ct.
at p. 2350].) "It is axiomatic that the government may not regulate speech
based on its substantive content or the message it conveys." ( Rosenberger
v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 828 [115 S. Ct.
2510, 2516, 132 L. Ed. 2d 700].) Accordingly, "[c]ontent-based regulations
are presumptively invalid." ( R. A. V. v. St. Paul (1992) 505 U.S.
377, 382 [112 S. Ct. 2538, 2542, 120 L. Ed. 2d 305].)
To the extent the United States Supreme Court has permitted content-based
speech restrictions, it has required that the restrictions be justified by a
"compelling" state interest and be the least restrictive means for
achieving that interest. ( First National Bank of Boston v. Bellotti
(1978) 435 U.S. 765, 786 [98 S. Ct. 1407, 1421, 55 L. Ed. 2d 707].) Indeed,
without deciding whether truthful speech about private facts may ever be
punished, the high court has specifically held that "where a newspaper
publishes truthful information [concerning private facts] which it has lawfully
obtained, punishment may lawfully be imposed, if at all, only when
narrowly tailored to a state interest of the highest order." ( The
Florida Star v. B. J. F. (1989) 491 U.S. 524, 541 [109 S. Ct. 2603, 2613, 105
L. Ed. 2d 443], italics added.) The plurality opinion has not attempted to
justify its liability rule by this test.
The individual or social harmfulness of speech with a particular content is
rarely a justification for suppressing it. For example, in a decision summarily
affirmed by the United States Supreme Court, the federal Seventh Circuit Court
of Appeals struck down an Indianapolis ordinance banning constitutionally
protected pornography that subordinated women because of the perceived
harmfulness of such pornography, while permitting other constitutionally
protected pornography. ( American Booksellers Ass'n., Inc. v. Hudnut
(7th Cir. 1985) 771 F.2d 323; affd., 475 U.S. 1001 [106 S. Ct. 1172, 89 L. Ed.
2d 291] [mem. opn.].) It could be argued that the "publication of private
facts" tort is similarly unconstitutional, because it punishes the
publication of a certain class of private facts--those that are not
newsworthy--based on its perceived harmfulness while permitting publication of
the same private facts if they are newsworthy.
Also, if this tort is to withstand constitutional scrutiny we must apply it
not only to the press, the focus of the plurality opinion's analysis, but also
to individuals who repeat the private facts of others in casual conversation.
(The Florida Star v. B. J. F., supra, 491 U.S. 524, 540 [109 S. Ct.
2603, 2613] ["When a State attempts the extraordinary measure of punishing
truthful publication in the name of privacy, it must demonstrate its commitment
to advancing this interest by applying its prohibition evenhandedly, to the
smalltime disseminator as well as the media giant."]; id. at p. 542
[109 S. Ct. at pp. 2613-2614] (conc. opn. of Scalia, J.) [same].) Doing so
could chill much private communication, a cost the plurality opinion does not
discuss.
The tension between current First Amendment doctrine and the tort of
publication of private facts is also reflected in the questionable
constitutional validity of two of the precedents on which the plurality opinion
relies. In both Melvin v. Reid (1931) 112 Cal. App.. 285 [297 P. 91] and
Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal. 3d 529
[93 Cal. Rptr. 866, 483 P.2d 34, 57 A.L.R.3d 1], California courts permitted
the plaintiffs to bring claims for the publication of the fact that, as shown
in official public records, they had been tried for (and, in Briscoe,
convicted of) crimes many years before. In Briscoe, this court reasoned
that the crime and conviction no longer were newsworthy and therefore
publication of those facts could be suppressed. I doubt that the holdings of
these cases have survived the high court's holding in Cox Broadcasting Corp.
v. Cohn (1975) 420 U.S. 469, 496 [95 S. Ct. 1029, 1047, 43 L. Ed. 2d 328]
that "the First and Fourteenth Amendments will not allow exposing the
press to liability for truthfully publishing information released to the public
in official court records," a prohibition that does not depend on the
newsworthiness of the material published. (See also Smith v. Daily Mail
Publishing Co. (1979) 443 U.S. 97, 103 [99 S. Ct. 2667, 2671, 61 L. Ed. 2d
399] ["once the truthful information was 'publicly revealed' or 'in the
public domain' the court could not constitutionally restrain its
dissemination"].) Certainly, a widespread application of Briscoe
could significantly alter the practice of biography and history, for even in
the case of notable figures much of what occurs in their private lives may have
faded from the public mind and, under the plurality opinion's test, may no
longer be newsworthy by the time the biographer or historian arrives on the
scene.
I do not doubt the need to protect individual privacy against the
ever-increasing intrusions upon it. I do question whether the publication of
private facts can be prohibited on the basis of the perceived newsworthiness of
the facts without creating a conflict with current First Amendment doctrine.
Others have also questioned whether this tort can be reconciled with the First
Amendment. ( Hall v. Post (1988) 323 N.C. 259, 267 [372 S.E.2d 711]
[rejecting "constitutionally suspect" tort of publication of private
facts because of its tension with the First Amendment]; Zimmerman, Requiem
for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort (1983)
68 Cornell L.Rev. 291, 306, 365 [arguing against adoption of the tort].) In
particular, the "newsworthiness" standard makes liability turn on the
sort of content-based subjective value judgments that have long been anathema
in the United States Supreme Court's First Amendment jurisprudence. It may be
that someday that court will separate out private facts as a unique category of
speech subject to special rules and a lesser degree of constitutional
protection, as it has done for speech promoting commercial transactions. (See Dun
& Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 758-760
[105 S. Ct. 2939, 2944-2946, 86 L. Ed. 2d 593] (plur. opn. of Powell, J.)
[characterizing speech on matters of private concern as subject to less
stringent protection under the First Amendment than speech on public affairs].)
Even in the commercial speech arena, however, the high court has rarely upheld
restrictions suppressing truthful, nonmisleading statements. (See, e.g., 44
Liquormart v. Rhode Island (1996) 517 U.S. 484 [116 S. Ct. 1495, 134 L. Ed.
2d 711] [striking down ban on advertising the price of liquor].)
As in other areas requiring the reconciliation of strong but competing
social interests, I would continue to mark the boundaries between the First
Amendment and the "publication of private facts" tort by the method
of case-by-case adjudication, as the United States Supreme Court has done. (The
Florida Star v. B. J. F., supra, 491 U.S. 524, 530 [109 S. Ct. 2603,
2607] ["The tension between the right which the First Amendment accords to
a free press, on the one hand, and the protections which various statutes and
common-law doctrines accord to personal privacy against the publication of
truthful information, on the other, is a subject we have addressed several
times in recent years. . . . [A]lthough our decisions have without exception
upheld the press' right to publish, we have emphasized each time that we were
resolving this conflict only as it arose in a discrete factual context."];
Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. 469.) Thus, I leave open
the possibility that the plurality opinion's "newsworthiness" rule
may require further adjustment and revision in the future when we are presented
with a case in which its application, unlike the situation here, would affirm liability
for the publication of truthful private facts.
Mosk, J., concurred.
DISSENTBY: CHIN (In Part); BROWN (In Part)
DISSENT: CHIN, J.,
Concurring and Dissenting.-- (1b) , (2b) , (3b) , (4c)
, (5b) I concur in part I of the plurality opinion. The newsworthy
nature of the disclosure absolutely precludes plaintiffs' recovery under this
theory, and summary judgment for defendants on this cause of action was
therefore proper.
I dissent, however, from the plurality's holding that plaintiffs'
"intrusion" cause of action should be remanded for trial. The
critical question is whether defendants' privacy intrusion was " 'highly
offensive to a reasonable person.' " (Plur. opn., ante, at p. 231,
italics added.) As the plurality explains, "the constitutional protection
of the press does reflect the strong societal interest in effective and
complete reporting of events, an interest that may--as a matter of law--justify
an intrusion that would otherwise be considered offensive." (Id.
at p. 236, italics added.) I also agree with the plurality that
"Information-collecting techniques that may be highly offensive
when done for socially unprotected reasons--for purposes of harassment,
blackmail or prurient curiosity, for example--may not be offensive to a
reasonable person when employed by journalists in pursuit of a socially or
politically important story." (Id. at p. 237, italics added.)
Although I agree with the plurality's premises, I disagree with the
conclusion it draws from those premises. The plurality concludes that a
reasonable person in Ruth Shulman's position might well have assumed that her
conversation with the nurses and doctors assisting her rescue would be kept
private. Likewise, the plurality believes, a reasonable person in Ruth's
position might not expect to find media personnel aboard a rescue helicopter. A
jury might well decide that defendants' desire for complete footage did not
justify these privacy intrusions. (Plur. opn., ante, at pp. 237-238.)
Ruth's expectations notwithstanding, I do not believe that a reasonable
trier of fact could find that defendants' conduct in this case was "highly
offensive to a reasonable person," the test adopted by the plurality.
Plaintiffs do not allege that defendants, though present at the accident rescue
scene and in the helicopter, interfered with either the rescue or medical
efforts, elicited embarrassing or offensive information from plaintiffs, or
even tried to interrogate or interview them. Defendants' news team evidently
merely recorded newsworthy events "of legitimate public concern"
(plur. opn., ante, at p. 228) as they transpired. Defendants' apparent
motive in undertaking the supposed privacy invasion was a reasonable and
nonmalicious one: to obtain an accurate depiction of the rescue efforts from
start to finish. The event was newsworthy, and the ultimate broadcast was both
dramatic and educational, rather than tawdry or embarrassing.
No illegal trespass on private property occurred, and any technical
illegality arising from defendants' recording Ruth's conversations with medical
personnel was not so "highly offensive" as to justify liability.
Recording the innocuous, inoffensive conversations that occurred between Ruth
and the nurse assisting her (see plur. opn., ante, at p. 211) and
filming the seemingly routine, though certainly newsworthy, helicopter ride (id.
at pp. 211-212) may have technically invaded plaintiffs' private
"space," but in my view no "highly offensive" invasion of
their privacy occurred.
We should bear in mind we are not dealing here with a true
"interception"--e.g., a surreptitious wiretap by a third party--of
words spoken in a truly private place--e.g., in a psychiatrist's examining
room, an attorney's office, or a priest's confessional. Rather, here the broadcast
showed Ruth speaking in settings where others could hear her, and the fact that
she did not realize she was being recorded does not ipso facto transform
defendants' newsgathering procedures into highly offensive conduct
within the meaning of the law of intrusion.
In short, to turn a jury loose on the defendants in this case is itself
"highly offensive" to me. I would reverse the judgment of the Court
of Appeal with directions to affirm the summary judgment for defendants on all
causes of action.
Mosk, J., concurred.
BROWN, J.,
Concurring and Dissenting.-- (6b) , (7b) , (8b) , (9c)
, (10b) , (11b) , (12c) , (13c) I concur in the
plurality's conclusion that summary judgment should not have been granted as to
the cause of action for intrusion, and I generally concur in its analysis of
that cause of action. n1 I respectfully dissent, however, from the conclusion
that summary judgment was proper as to plaintiff Ruth Shulman's cause of action
for publication of private facts. For the reasons discussed below, I would hold
that there are triable issues of material fact as to that cause of action as
well.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 I decline to join the plurality opinion's discussion of the intrusion
cause of action in its entirety. As the plurality notes, "[t]he conduct of
journalism does not depend, as a general matter, on the use of secret devices
to record private conversations." (Plur. opn., ante, at p. 239.)
Therefore, I do not share the view that "[e]quipment such as hidden
cameras and miniature cordless and directional microphones are powerful
investigative tools for newsgathering. . . ." (Id. at p. 237.) On a
more fundamental level, I disagree with the artificial barrier the plurality
erects between the publication of private facts and the intrusion causes of
action. Unlike the plurality, for instance, I would hold that the depth of the
intrusion into private affairs and the lawfulness of the news media's conduct
are relevant to both causes of action.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Ironically, the plurality begins its discussion of the publication of
private facts cause of action by describing it as "one of the more . . .
well-defined areas of privacy law." (Plur. opn., ante, at p. 214.)
While that may have been an accurate description before today's extended
exegesis, it is certainly no longer the case. After paying lip service to this
court's well-established, scholarly precedents, the plurality proceeds to
ignore their test for assessing newsworthiness. Worse yet, the new test adopted
in the plurality opinion seriously compromises personal privacy by rendering
otherwise private facts newsworthy whenever they bear a "logical
relationship" to a matter of legitimate public concern, even in situations
where the news media obtain the private facts by deceptive and unlawful means.
The plurality opinion starts innocuously enough, correctly reciting the
elements of a cause of action for publication of private facts: " '(1) public
disclosure (2) of a private fact (3) which would be offensive and objectionable
to the reasonable person and (4) which is not of legitimate public concern.'
" (Plur. opn., ante, at p. 214, quoting Diaz v. Oakland Tribune,
Inc. (1983) 139 Cal. App. 3d 118, 126 [188 Cal. Rptr. 762].) The plurality
opinion then recounts the general test we have consistently applied in
determining whether the private fact disclosed is of legitimate public
concern--that is, whether it is newsworthy: " 'In determining whether a
particular incident is "newsworthy" and thus whether the privilege
shields its truthful publication from liability, the courts consider a variety
of factors, including the social value of the facts published, the depth of the
article's intrusion into ostensibly private affairs, and the extent to which
the party voluntarily acceded to a position of public notoriety.' " (Plur.
opn., ante, at p. 220, quoting Kapellas v. Kofman (1969) 1 Cal.
3d 20, 36 [81 Cal. Rptr. 360, 459 P.2d 912] (hereafter Kapellas); see
also Forsher v. Bugliosi (1980) 26 Cal. 3d 792, 810, 812 [163 Cal. Rptr.
628, 608 P.2d 716] [same]; Briscoe v. Reader's Digest Association, Inc.
(1971) 4 Cal. 3d 529, 541 [93 Cal. Rptr. 866, 483 P.2d 34, 57 A.L.R.3d 1]
[same].)
In this case, a straightforward application of the Kapellas
newsworthiness test leads to one inescapable conclusion--that, at the very
least, there are triable issues of material fact on the question of
newsworthiness. The private facts broadcast had little, if any, social value. (Kapellas,
supra, 1 Cal. 3d at p. 36.) The public has no legitimate interest in
witnessing Ruth's disorientation and despair. Nor does it have any legitimate
interest in knowing Ruth's personal and innermost thoughts immediately after
sustaining injuries that rendered her a paraplegic and left her hospitalized
for months--"I just want to die. I don't want to go through this."
The depth of the broadcast's intrusion into ostensibly private affairs was
substantial. (Ibid.) As the plurality later acknowledges in analyzing
"the depth of the intrusion" for purposes of Ruth's intrusion cause
of action, "[a]rguably, the last thing an injured accident victim should
have to worry about while being pried from her wrecked car is that a television
producer may be recording everything she says to medical personnel for the
possible edification and entertainment of casual television viewers. [P] For
much the same reason, a jury could reasonably regard entering and riding in an
ambulance--whether on the ground or in the air--with two seriously injured
patients to be an egregious intrusion on a place of expected seclusion. . . . A
jury could reasonably believe that fundamental respect for human dignity
requires the patients' anxious journey be taken only with those whose care is
solely for them and out of sight of the prying eyes (or cameras) of
others." (Plur. opn., ante, at p. 238.) There was nothing voluntary
about Ruth's position of public notoriety. (Kapellas, supra, 1
Cal. 3d at p. 36.) She was "involuntarily caught up in events of public
interest" (plur. opn., ante, at p. 215), all the more so because
defendants appear to have surreptitiously and unlawfully recorded her private
conversations with Nurse Laura Carnahan. (See id. at pp. 233-235.)
Inexplicably, the plurality jettisons the Kapellas newsworthiness
test in favor of its own "logical relationship" test. Under this new
test, "where the facts disclosed about a private person involuntarily
caught up in events of public interest bear a logical relationship to the newsworthy
subject of the broadcast and are not intrusive in great disproportion to their
relevance--the broadcast was of legitimate public concern, barring liability
under the private facts tort." (Plur. opn., ante, at p. 215; see
also id. at pp. 224-226, 228-229, 242.) Here, the plurality misapplies
its own new test, wrongly concluding there are no triable issues of material
fact. (Compare id. at pp. 228-230 [no triable issues] with id. at
pp. 237-238 [describing the highly intrusive nature of the news media's conduct
in this case].) More significantly, however, the plurality fails to acknowledge
that its new test is a radical departure from that set out in Kapellas
and its progeny, a departure that should be obvious to even a casual reader.
Under the plurality's new test, personal privacy must yield whenever the
overall subject matter of a broadcast is newsworthy and the private facts
disclosed bear a "logical relationship" to that subject matter. Thus,
to "[t]he more difficult question [of] whether Ruth's appearance and words
as she was extricated from the overturned car, placed in the helicopter and
transported to the hospital were of legitimate public concern" (plur.
opn., ante, at p. 228), the plurality offers the facile answer that they
were because "her disorientation and despair were substantially relevant
to the segment's newsworthy subject matter" (id. at p. 229).
Contrary to the plurality's claim that it is "accommodating
conflicting interests in personal privacy and in press freedom as guaranteed by
the First Amendment to the United States Constitution" (plur. opn., ante,
at p. 215, italics added), in reality it sacrifices the constitutional right to
privacy on the altar of the First Amendment. Unlike the Kapellas
newsworthiness test, which expressly considers both "the depth of
the [broadcast's] intrusion into ostensibly private affairs" and
"the extent to which the party voluntarily acceded to a position of public
notoriety" as part of the mix (Kapellas, supra, 1 Cal. 3d at
p. 36), the plurality's new "logical relationship" test considers only
whether the private facts disclosed are "intrusive in great disproportion
to their relevance" (plur. opn., ante, at p. 215).
The latter inquiry is substantially less accommodating of personal privacy
than the former. Suppose, for example, that a television producer decided to
broadcast a story on the reluctance of victims to report incidents of sexual
assault, undeniably a newsworthy subject matter. Under the plurality's
formulation, the producer would then be free to broadcast a surreptitiously and
unlawfully recorded account of a specific victim's reluctance, conveyed in
confidence to her therapist, because that too would undeniably bear "a
logical relationship to the newsworthy subject of the broadcast" and would
not be "intrusive in great disproportion to [its] relevance."
n2 (Plur. opn., ante, at p. 215, italics added.) The Kapellas
newsworthiness test, by contrast, would yield the correct result--namely, that
the therapy session is not newsworthy because "the depth of the
[broadcast's] intrusion into ostensibly private affairs" is simply too
great and because the victim did not "voluntarily accede[] to a position
of public notoriety." (Kapellas, supra, 1 Cal. 3d at p. 36.)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Apparently recognizing the absurdity of precluding recovery under these
circumstances, the plurality all but concedes that damages under an intrusion
cause of action must include compensation for injury resulting from the
broadcast of private facts gathered through intrusion. (Plur. opn., ante,
at p. 240, fn. 18.) Likewise, the plurality conveniently sidesteps the
significance of unlawful acquisition to a publication of private facts cause of
action, "regarding it as going [only] to the extent of allowable damages
for intrusion." (Id. at p. 230, fn. 11.) The only reasoning behind
this ipse dixit--it is so because we say so. In reality, unlawful acquisition
is clearly relevant to both "the depth of the [broadcast's] intrusion into
ostensibly private affairs" and "the extent to which the party
voluntarily acceded to a position of public notoriety" (Kapellas, supra,
1 Cal. 3d at p. 36), two key factors in the traditional newsworthiness
formulation.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In short, I see no reason to abandon our traditional newsworthiness test,
which has produced consistent and predictable results over the course of nearly
three decades. As I have explained, a straightforward application of that test
demonstrates there are triable issues of material fact on the question of
newsworthiness and, hence, that summary judgment should not have been granted
on Ruth's cause of action for publication of private facts.
For the reasons discussed above, I would affirm the judgment of the Court
of Appeal in its entirety.
Baxter, J., concurred.
Respondents' petition for a rehearing was denied July 29, 1998, and the
opinion was modified to read as printed above. Mosk, J., and Chin, J., were of
the opinion that the petition should be granted.