Wednesday, October 6, 2004
Justices Question Whether Program Invaded Ex-Convict’s Privacy
State High Court Mulls Continued Validity of Precedent Holding Old Crimes Lose Newsworthiness
By KENNETH OFGANG, Staff Writer/Appellate Courts
Several California Supreme Court justices expressed skepticism yesterday as to the continued viability of a 32-year-old ruling permitting jurors to weigh whether a publication that identified a convicted felon is liable for invasion of privacy.
Niles Sharif, a La Mesa attorney whose client is suing over a Discovery Channel program discussing his criminal past, said jurors are uniquely suited to determine whether a media defendant was engaged in legitimate news reporting or merely “trolling” for controversy.
Sharif urged the justices to reverse a Fourth District Court of Appeal holding that Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, part of the standard text in most books on California privacy and First Amendment law, lacks vitality in light of intervening U.S. Supreme Court authority.
Sharif wants the high court to reinstate a San Diego Superior Court ruling denying a special motion to strike under the anti-SLAPP law by producers of a Discovery Channel series called “The Prosecutors” in which notorious crimes are re-enacted and the capture and conviction of the perpetrators is detailed.
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 accurately reported—was newsworthy.
Enright cited Briscoe, which 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 had since become rehabilitated.
Briscoe sued over disclosure of his name. 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,” in part because of deadline pressure, in part because of importance of identifying perpetrators of “recent crimes.”
But several justices suggested yesterday that the San Diego-based Court of Appeal panel had gotten it right when it said that there could be no liability for an alleged invasion of privacy consisting of an accurate report of the contents of a public record.
Justice Joyce L. Kennard, while expressing “a great deal of sympathy” for Gates, noted her authorship of a concurring opinion in another privacy case, Shulman v. Group W Productions, Inc. (1998) 18 Cal. 4th 200. She suggested there that Briscoe was of “questionable constitutional validity” after Cox Broadcasting Corporation v. Cohn(1975) 420 U.S. 469.
Cox held that under the First Amendment, a journalist could not be held liable for publication of a rape victim’s name, obtained from a court record, in violation of state law.
Sharif said the cases were distinguishable, in that the report in Cox was about a newsworthy event. Gates’ case, he argued, was of little news value so many years after the event and in so many media markets where the case had not even been reported before the Discovery Channel broadcast.
Several justices questioned whether leaving such distinctions to be sorted out by a jury was a correct way to balance the right of privacy against the freedom of the press.
Chief Justice Ronald M. George asked whether juries were equipped to deal with First Amendment questions. He cited surveys indicating that if the First Amendment were put on a ballot, “maybe a majority would vote it down, along with the Fourth Amendment.”
Justice Kathryn M. Werdegar questioned what type of jury instructions would be appropriate. The distinction Sharif was asking juries to draw “seems very vague,” she told the attorney.
Justice Janice Rogers Brown extracted an acknowledgment from Sharif that liability could, under his view, be imposed on scholars and historians as well as the media. But that would only be the case, the attorney said, if they were publishing information about a matter “so old that it can have no possible relevance to issues that are under consideration today.”
Justice Marvin Baxter noted that persons convicted of crimes have very limited rights of privacy with regard to their convictions, even years after the fact. Such a person could, he got Sharif to concede, be required to disclose the conviction on an application for a license and be prosecuted for perjury if he or she falsely denies the fact.
Discovery Channel attorney Louis P. Petrich of Century City’s Leopold Petrich & Smith said there was no meaningful distinction between what Sharif called “trolling” and recognized scholarship. “Even fiction and entertainment have First Amendment protection,” he declared, citing Guglielmi v. Spelling-Goldberg Prods. (1979) 25 Cal. 3d 860.
The high court held in that case held that the heirs of Rudolph Valentino could not assert an invasion-of-privacy claim based on a fictionalized television account of the late actor’s life.
Petrich also defended the program which led to the lawsuit.
“This program is educational,” he told the justices. “It is not sensational.”
That prompted Justice Ming Chin to ask whether “sensationalism” is a factor in the constitutional analysis.
It is not, Petrich answered. “As long as it is speech, it is protected,” he answered.
Copyright 2004, Metropolitan News Company