Metropolitan News-Enterprise


Thursday, June 19, 2003


Page 1


S.C. to Decide if Right to Disclose Criminal Record Is Absolute


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court agreed yesterday to decide whether a 32-year-old ruling allowing a publication that identified a convicted felon to be held liable for invasion of privacy is still good law.

The justices, at their weekly conference, decided unanimously to grant review of the Feb. 27 Fourth District Court of Appeal, Div. One ruling in Gates v. Discovery Communications, Inc., 106 Cal.App.4th 677.

The San Diego-based panel concluded that a 1975 U.S. Supreme Court ruling had implicitly overruled the earlier California case. In a victory for First Amendment press and speech rights over an individual’s right to privacy, the court said that no civil or criminal penalties may be imposed for publishing the public record of a judicial proceeding, no matter how old it is.

‘The Prosecutors’

The panel ordered that a San Diego Superior Court action against the producers of a Discovery Channel television series called “The Prosecutors”—featuring reenactments of notorious crimes and details of the capture and conviction of the perpetrators—be stricken under the anti-SLAPP law.

Plaintiff Steve Gates was identified in one show as having pled guilty to being an accessory after the fact to murder for hire. Gates, who served three years in prison, argued that he had done his time and had since lived an exemplary life, and sued Discovery Communications, Inc. and New Dominion Pictures for invasion of privacy.

The defendants moved to strike the complaint as a strategic lawsuit against public participation. Judge Kevin A. Enright denied the motion, holding that the defendants had failed to show that Gates’ involvement in the killing of Salvatore Ruscitti—although accurate—was newsworthy.

Gates’ argument and Enright’s ruling that Gates had a probability of prevailing at trial turned on Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, a feature of books on California privacy and First Amendment law. The Briscoe ruling, while often criticized, has never been explicitly overturned.

Briscoe Facts

The case concerned a 1966 Reader’s Digest article about truck hijacking and named Marvin Briscoe, a man who had committed a hijacking 11 years earlier and who claimed he had since rehabilitated himself. The Supreme Court concluded that in balancing privacy rights against the First Amendment, special protection was accorded “hot news, items of possible immediate public interest or concern,” and in part because of deadline pressure, in part because of importance of identifying perpetrators of “recent crimes.”

But when the crimes were not recent, the court said, there is little social utility in identifying the offender, and the First Amendment provides less protection to the journalist or writer who publishes it.

Besides, the court said, keeping the identity of former offenders private preserved the “integrity of the rehabilitative process.”

Although truthful publications remained constitutionally protected if they were newsworthy, the court said, it remained up to a jury to decide whether the name of a person like Briscoe remained newsworthy.

But Justice Patricia Benke, writing for the Fourth District panel, noted that the U.S. Supreme Court later “categorically declared that no sanction may be imposed on the publication of truthful information contained in an official report open to public inspection.”

In that case—Cox Broadcasting Corporation v. Cohn—a television reporter in Georgia learned the name of a murder and rape victim from an indictment. The station reported the name, in violation of Georgia law, and the victim’s father sued for invasion of privacy.

The Georgia trial court permitted the suit, saying the criminal statute gave a civil remedy to those injured by its violation.

Publication Protected

The Supreme Court avoided the question of whether the Constitution requires that truth be recognized as a defense in a defamation action by a private person rather than a public figure. But the court ruled that states may not impose sanctions on the accurate publication of the names of crime victims obtained from judicial records “which are maintained in connection with a public prosecution and which themselves are open to public inspection.”

Benke said Cox, not Briscoe, controls in Gates’ case.

In other action at yesterday’s conference, the high court:

Agreed to decide whether a declaration that was executed outside California and did not state it was signed “under penalty of perjury under the laws of the State of California” substantially complied with the requirements of state law. The Third District held in Kulshrestha v. First Union Commercial Corporation, 107 Cal.App.4th 415, that it did not, and said the trial judge was correct in not considering the declaration in opposition to a summary judgment motion.

Declined to hear a former Inter-Con Security Services guard’s claim that a local attorney got him fired after he filed a declaration accusing the lawyer, Barry B. Kaufman, of harassing attorney Frances L. Diaz at the Mosk Courthouse, where Kaufman and Diaz have done battle in a series of lawsuits.

Div. One of this district’s Court of Appeal held that the guard, Steven L. Baldwin—who was represented by Diaz—had no case because the comments by Kaufman on which the firing was allegedly based were contained in a court declaration, and thus absolutely privileged.


Copyright 2003, Metropolitan News Company