Metropolitan News-Enterprise


Tuesday, December 7, 2004


Page 1


California Supreme Court Rules:

Truthful Report From Public Record Is Not Invasion of Privacy


By KENNETH OFGANG, Staff Writer/Appellate Courts


A producer or publisher whose account of a court proceeding is an accurate reflection of the public record enjoys First Amendment protection from liability for invasion of the privacy of persons named therein, no matter how old the case is, the California Supreme Court ruled yesterday.

Justice Kathryn M. Werdegar, writing for a unanimous court, said a 32-year-old ruling permitting jurors to weigh whether the harm to a named individual outweighed the newsworthiness of the account, particularly in the case of notorious events that had occurred years earlier, was no longer good law.

Subsequent rulings of the California high court, and of the U.S. Supreme Court, make clear that “courts are not freed, by the mere passage of time, to impose sanctions on the publication of truthful information that is obtained from public official court records,” Werdegar wrote.

The justices affirmed a Fourth District Court of Appeal ruling in favor of the owner of the Discovery Channel and the producers of television series called “The Prosecutors” featuring reenactments of old crimes.

The plaintiff, Steve Gates, sued after the program identified his connection to the murder of Salvatore Ruscitti a dozen years earlier. The victim was an automobile salesman who was shot and killed by hired “hitmen” at the door of his Southern California home.

 Gates’ employer, prominent automobile dealer Will Nix, was convicted of masterminding the murder in order to deter a lawsuit Ruscitti—who claimed to have been cheated out of commissions—had filed against an automobile dealership owned by Nix’s parents. 

Convicted as Accessory

Gates originally was charged as a coconspirator, but the charges were later reduced. He was convicted as an accessory after the fact and sentenced to three years in prison.

He served 13 months before being paroled and later received a certificate of rehabilitation.

Discovery Communications, Inc. and New Dominion Pictures moved to strike Gates’ complaint as a strategic lawsuit against public participation. San Diego Superior Court Judge  Kevin A. Enright denied the motion, based on Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529.

Briscoe 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 state 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 when the crimes were not recent, the court said, there was 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, in a situation like Briscoe’s newsworthiness was an issue for a jury to decide.

Cox Cited

But Werdegar agreed with the Fourth District panel that Briscoe could not be distinguished from Cox Broadcasting Corporation v. Cohn (1975) 420 U.S. 469, in which the court held that a Georgia law prohibiting the publication of the name of a rape victim was unconstitutional as applied to a reporter who learned the name from an indictment.

 The high court ruled in Cox 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.”

The same principle applies to “The Prosecutors,” Werdegar wrote.

“Neither that defendants’ documentary was of an historical nature nor that it involved ëreenactments,’ rather than firsthand coverage, of the events reported, diminishes any constitutional protection it enjoys,” the justice wrote.

Discovery Communications and New Dominion Pictures were represented by Louis P. Petrich of Century City’s Leopold Petrich & Smith. La Mesa sole practitioner Niles Sharif argued for Gates.

The case is Gates v. Discovery Communications, Inc., 04 S.O.S. 6278.


Copyright 2004, Metropolitan News Company