Metropolitan News-Enterprise


Wednesday, March 15, 2006


Page 1


Ninth Circuit Asks California Supreme Court to Clarify Ruling on Publication of Facts About Past Crimes


By a MetNews Staff Writer


A panel of the Ninth U.S. Circuit Court of Appeals yesterday asked the California Supreme Court to decide whether its 2004 ruling privileging the publication of facts from the public record about an individual’s past crimes applies to non-media defendants.

In certifying the question to the state’s high court, Senior Judge Betty B. Fletcher said the federal court’s ruling in a dispute over information allegedly published on a Web site by Palm Springs attorney David Lynch would turn on the answer.

Lynch was sued by Readylink Healthcare and its owner, Barry Treash, in 2004. Treash claimed that after unsuccessfully representing a former Readylink employee in trade secret litigation brought by his company, Lynch launched a vendetta against him and Readylink, devoting a page on his Web site to soliciting clients for suits against them.

The only potentially viable claim in the suit, Fletcher said, was for invasion of privacy and related to a link on Lynch’s Web site which allegedly generated a page with the following assertion:

“The Public Records of the United States District Court for the Central District of California, more particularly, Case No. CR 84-298, reflect that on July 24, 1984, Barry Lynn Treash, date of birth December 25, 1944, was convicted of multiple felonies. He served time in Federal Prison and was released in 1988. He was then on probation until 1993. The documents speak for themselves. I urge everyone to read these documents to make an informed decision about Barry’s reputation and whether or not to do business with him.”

The question of whether that alleged assertion was privileged, Fletcher said, depended on the scope of the state high court’s decision in Gates v. Discovery Communications, Inc., 34 Cal. 4th 679. In that case the high court overturned its 1971 ruling in Briscoe v. Reader’s Digest Association, Inc., 4 Cal. 3d 529, that the publication of facts about an individual’s past criminal activity, even when drawn from the public record, may constitute an invasion of privacy.

Noting that the court in Gates reasoned that U.S. Supreme Court decisions had “fatally undermined Briscoe’s holding that a media defendant may be held liable in tort for recklessly publishing true but not newsworthy facts concerning a rehabilitated former criminal, insofar as that holding applies to facts obtained from public official court records,” Fletcher asked:

“Can there be liability under an invasion of privacy theory where a nonmedia defendant, with a commercial interest in or a malicious motive for publishing facts about a plaintiff’s past crimes, does so? Under the commercial speech doctrine, is the speech of a non-media defendant with a commercial interest in or malicious motive for publishing facts entitled to less protection under the First Amendment than that of a media defendant?”

She commented:

California case law does not address whether an invasion of privacy claim against a private person is precluded by the First Amendment where the speech was motivated by malice or intent to gain commercial advantage. Whether Gates applies broadly to all accurate publication of facts obtained lawfully from the public record, including situations where the publisher is not a member of the press and where the motivation for that publication was malice or intent to gain commercial advantage, has not been decided by the California courts.”

In Gates,, 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.

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. A San Diego Superior Court judge denied the motion, citing 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 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.

But Justice Kathryn M. Werdegar, writing for a unanimous court in Gates, 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 ‘reenactments,’ rather than firsthand coverage, of the events reported, diminishes any constitutional protection it enjoys,” the justice wrote.

The panel of Ninth Circuit judges considering the suit filed by Readylink and Treash includes, in addition to Fletcher, Judge Consuelo M. Callahan and Senior Judge A. Wallace Tashima.


Copyright 2006, Metropolitan News Company