Dietemann v. Time, Incorporated

• Decision Date: 28 May 1968
• Docket Number: Civ. No. 64-1235-CC.
• Citation: 284 F. Supp. 925
• Court: U.S. District Court — Central District of California
• Parties: A. A. DIETEMANN, Plaintiff, v. TIME, INCORPORATED, a New York corporation, Defendant.

284 F. Supp. 925

A. A. DIETEMANN, Plaintiff, v. TIME, INCORPORATED, a New York corporation, Defendant.

Civ. No. 64-1235-CC.

United States District Court C. D. California.

May 28, 1968.

A. L. Wirin and Paul M. Posner, Los Angeles, Cal., for plaintiff.

O'Melveny & Myers, Los Angeles, Cal., for defendant.

OPINION

CARR, District Judge.

This is a diversity suit for invasion of privacy seeking $100,000.00 general damages and $200,000.00 exemplary damages. Plaintiff, a disabled veteran with little education, was engaged in the practice of healing with clay, minerals, and herbs — as practiced, simple quackery.

Defendant, Time, Incorporated, a New York corporation, publishes Life Magazine. Its November 1, 1963 edition carried an article entitled "Crackdown on Quackery." The article depicted plaintiff as a quack and included two pictures of him. One picture was taken at plaintiff's home on September 20, 1963, previous to his arrest on a charge of practicing medicine without a license, and the other taken at the time of his arrest.

Life Magazine entered into an arrangement with the District Attorney's Office of Los Angeles County whereby Life's employees would visit plaintiff and obtain facts and pictures concerning his activities. Two employees of Life, Mrs. Jackie Metcalf and Mr. William Ray, went to plaintiff's home on September 20, 1963. When they arrived at a locked gate, they rang a bell and plaintiff came out of his house and was told by Mrs. Metcalf and Ray that they had been sent there by a friend, a Mr. Johnson. The use of Johnson's name was a ruse to gain entrance. Plaintiff admitted them and all three went into the house and into plaintiff's den.

The plaintiff had some equipment which could at best be described as gadgets, not equipment which had anything to do with the practice of medicine. Plaintiff, while examining Mrs. Metcalf, was photographed by Ray with a hidden camera without the consent of plaintiff. One of the pictures taken by him appeared in Life Magazine showing plaintiff with his hand on the upper portion of Mrs. Metcalf's breast while he was looking at some gadgets and holding what appeared to be a wand in his right hand. Mrs. Metcalf had told plaintiff that she had a lump in her breast. Plaintiff concluded that she had eaten some rancid butter 11 years, 9 months, and 7 days prior to that time. Other persons were seated in the room during this time.

The conversation between Mrs. Metcalf and plaintiff was transmitted by radio transmitter hidden in Mrs. Metcalf's purse to a tape recorder in a parked automobile occupied by Joseph Bride, Life employee, John Miner of the District Attorney's Office, and Grant Leake, an investigator of the State Department of Public Health. While the recorded conversation was not quoted in the article in Life, it was mentioned that Life correspondent Bride was making notes of what was being received via the radio transmitter, and such information was at least referred to in the article.

The foregoing events were photographed and recorded by an arrangement among Miner of the District Attorney's Office, Leake of the State Department of Public Health, and Bride, a representative of Life. It had been agreed that Life would obtain pictures and information for use as evidence, and later could be used by Life for publication.

Prior to the occurrences of September 20, 1963, on two occasions the officials had obtained recordings of conversations in plaintiff's home; however, no pictures had been secured. Life employees had not participated in obtaining the recordings on these occasions.

On October 15, 1963, plaintiff was arrested at his home on a charge of practicing medicine without a license in violation of Section 26280, California Health and Safety Code. At the time of his arrest, many pictures were made by Life of plaintiff at his home. Plaintiff testified that he did not agree to pose for the pictures but allowed pictures because he thought the officers could require it. Also present were newspaper men who had also been invited by the officials to be present at the time of arrest.

Defendant contends that plaintiff posed for pictures at the time of his arrest and thus permission was given to take those pictures. As hereinafter pointed out, it is unnecessary to decide whether or not permission was given to take pictures at the time of his arrest.

Plaintiff, although a journeyman plumber, claims to be a scientist. Plaintiff had no listings and his home had no sign of any kind. He did not advertise, nor did he have a telephone. He made no charges when he attempted to diagnose or to prescribe herbs and minerals. He did accept contributions.

Life's article concerning plaintiff was not published until after plaintiff was arrested but before his plea on June 1, 1964 of nolo contendere for violations of Section 2141 of the California Business and Professions Code and Section 26280 of the California Health and Safety Code (misdemeanors).

Plaintiff contends that under applicable California law there has been an invasion of his right of privacy. Defendant contends that since both the California and the United States Constitutions protect freedom of press and speech, the entry of its agents into plaintiff's quarters and the publication of the pictures taken there were privileged.

Since the article by Brandeis and Warren in 4 Harv.L.Rev. 193 (1890), the right of privacy has received more and more attention. Both writers and judges throughout the country have attempted to delineate the boundaries of the action for invasion of privacy. Despite the lack of unanimity in the decisions in the various states and the differences between the writers,¹ the law in California in a large measure has been settled. Since that law applies here,² it must be ascertained and applied.

The case of Melvin v. Reid et al., 112 Cal.App. 285, 297 P. 91, usually referred to as the "Red Kimono" case, appears to be the cornerstone case in which the right of privacy was defined. The court stated the applicable law as follows (297 P., page 82):

"The right of privacy may be defined as the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity."

In this case a motion picture was made of the life of a woman who had been a prostitute and who had been tried for murder and acquitted. The court apparently held that the use of incidents from her life was not actionable because those incidents appeared in public records, but that the use of her name was an invasion of her right of privacy guaranteed by the California Constitution. Among other things the court said the right of privacy is an incident of the person and not of property. It is purely a personal action. It does not exist where the published matter was consented to or where the person is so prominent that by his very prominence he has dedicated his life to the public, thereby waiving his right of privacy. In other words, there can be no privacy in that which is already public. The right of privacy can only be violated by printings, writings, pictures, or publications, not by word of mouth. The court also noted that the right of action accrues when the publication is made for gain or profit, but noted that this is, however, questioned in some cases.

Since the decision in "Red Kimono," the California courts have dealt with the right of privacy in many cases.

In Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876, the court stated at page 880:

"The gravamen of the tort is ordinarily the unwarranted publication by defendant of intimate details of plaintiff's private life."

In Britt v. Superior Court of Santa Clara County, 58 Cal.2d 469, 24 Cal. Rptr. 849, 374 P.2d 817, the court, in holding that the use of a peephole in a men's restroom resulted in an illegal search, noted at p. 819:

"Man's constitutionally protected right of personal privacy not only abides with him while he is the householder within his own castle but cloaks him when as a member of the public he is temporarily occupying a room — including a toilet stall — to the extent that it is offered to the public for private, however transient, individual use."

Although Prosser in his article appears to say that intrusion without publicity may constitute an invasion of privacy, the California courts seem to require publication. "Red Kimono," supra, and Coverstone, supra.

The defenses interposed will now be considered. Defendant asserts first, and as its major contention, that the intrusion of the plaintiff's quarters and the pictures taken there at the time were privileged under the First Amendment of the United States Constitution, and Article I, Section 9, of the California Constitution.

At the outset defendant is met with the proposition that although freedom of speech and freedom of press are constitutional guaranties, so is the right of privacy. Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. While the courts may be required under some circumstances to balance the rights and privileges when the constitutional guaranties of freedom of speech and press clash with the right of privacy, there would appear to be no basis to give greater weight or priority to any one of these constitutional guaranties.

It was said by the Supreme Court of California in Gill v. Curtis Publishing Company, 38 Cal.2d 273, 239 P.2d 630, at page 633:

"* * * The right of privacy does undoubtedly infringe upon absolute freedom of speech and of the press, and it also clashes with the interest of the public in having a free dissemination of news and information. These paramount public interests must be taken into account in placing the necessary limitations upon the right of privacy. But if this right of the individual is not without qualifications, neither is freedom of speech and of the press unlimited. The latter privilege is subject to the qualification that it shall not be so exercised as to abuse the rights of individuals.

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