Friday, February 28, 2003
Truthful Report From Public Court Record Not Privacy Invasion—C.A.
By ROBERT GREENE, Associate Editor
A 32-year-old California Supreme Court ruling permitting jurors to weigh whether a publication that identified a convicted felonis liable for invasion of privacy no longer is good law, the Fourth District Court of Appeal ruled yesterday.
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 ruling reverses a San Diego Superior Court ruling denying a special motion to strike under the anti-SLAPP law by producers of a Discovery Channel television 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 accurate—was newsworthy.
Gates’ argument and Enright’s ruling that Gates had a probability of prevailing at trial turned on the 1971 case of Briscoe v. Reader’s Digest Association, Inc., part of the standard text in most books on California privacy and First Amendment law. The Briscoe ruling, while often criticized, has never been explicitly overturned.
The Briscoe 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 had since become rehabilitated.
Briscoe sued over disclosure of his name. The Supreme Court concluded that tin 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, it remained up to a jury to decide whether the name of a person like Briscoe remained newsworthy.
“A jury could conclude Briscoe had over time again become an anonymous member of the community,” Benke said in outlining the Briscoe ruling.
The justice noted that the U.S. Supreme Court has avoided holding that the First Amendment always protects publication of lawfully obtained truthful information of public significance. Under some circumstances, criminal or civil punishment could be allowed “when there is a countervailing state interest of the highest order,” Benke said.
But she added that in 1975 the U.S. Supreme Court “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.
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 controls in Gates’ case.
“To require journalists, historians or documentarians to make subjective judgments balancing the right of the public to know against, for example, the right of a convicted and perhaps rehabilitated felon to some degree of privacy would promote the type of self-censorship and timidity the United States Supreme court is not willing to accept,” the justice said. “The core of Cox is that the State cannot make the record of a judicial proceeding fully public and then sanction a publication of it. The State of California took no action in the name of privacy or criminal rehabilitation to seal the record of Briscoe’s crime. It was at the time of the publication of the Reader’s Digest article as public as it had been the day of Briscoe’s conviction. We are led to the conclusion that insofar as Briscoe held that criminal or civil penalties could result from the publication of the public record of a judicial proceeding, it was overruled by Cox.”
The case is Gates v. Discovery Communications, Inc., D039399.
Copyright 2003, Metropolitan News Company