Gates v. Discovery Communications, Inc.

• Decision Date: 06 December 2004
• Docket Number: No. S115008.,S115008.
• Citation: 21 Cal.Rptr.3d 663,34 Cal.4th 679,101 P.3d 552
• Court: California Supreme Court
• Parties: Steve GATES, Plaintiff and Respondent, v. DISCOVERY COMMUNICATIONS, INC., et al., Defendants and Appellants.

21 Cal.Rptr.3d 663

34 Cal.4th 679

101 P.3d 552

Steve GATES, Plaintiff and Respondent, v. DISCOVERY COMMUNICATIONS, INC., et al., Defendants and Appellants.

No. S115008.

Supreme Court of California.

December 6, 2004.

Certiorari Denied October 3, 2005.

Leopold, Petrich & Smith, Louis P. Petrich and Robert S. Gutierrez, Los Angeles, for Defendants and Appellants.

McDermott Will & Emery, Robert H. Rotstein and Nicholas F. Oettinger for the Motion Picture Association of America, Inc., as Amicus Curiae on behalf of Defendants and Appellants.

Davis Wright Tremaine, Gary L. Bostwick, Kelli L. Sager and Marc A. Fuller, Los Angeles, for CBS Broadcasting, Inc., The Copley Press, Inc., The McClatchy Company, Los Angeles Times Communications LLC, Bloomberg L.P., the First Amendment Project, the California Newspaper Publishers Association, the Northern California Chapter of the Society of Professional Journalists and the California First Amendment Coalition as Amici Curiae on behalf of Defendants and Appellants.

Niles R. Sharif, La Mesa, for Plaintiff and Respondent.

Certiorari Denied October 3, 2005. See 126 S.Ct. 368.

WERDEGAR, J.

We must decide whether the producers and presenters of a television documentary program may be held liable in tort for publishing therein information they gathered from public official court records concerning a person who many years previously served a prison term for a felony conviction but who has since lived an obscure, lawful life and become a respected member of the community. The Court of Appeal concluded defendants may not be held liable under such circumstances. We affirm the judgment of the Court of Appeal.

Background

Plaintiff served a prison sentence of three years (with time off for good behavior) that was imposed after he was convicted upon pleading guilty in 1992 to being an accessory after the fact to a murder for hire that occurred in 1988. The victim was an automobile salesman who was shot and killed by hired "hitmen" at the door of his Southern California home. A prominent automobile dealer was convicted of masterminding the murder in order to deter a class action lawsuit the victim had filed against an automobile dealership owned by the dealer's parents. Plaintiff, who was employed as the automobile dealers assistant manager at the time of the murder, originally was charged as a coconspirator, but the charges were later reduced. Defendants are television production and transmission companies that aired an account of the crime in 2001 — more than a dozen years after the crime occurred.

After defendants' documentary was broadcast, plaintiff filed this action, pleading causes of action for defamation and invasion of privacy. With respect to his defamation claim, plaintiff alleged that since he was released from prison he has a led an obscure, productive, lawful life.¹ He further alleged that defendants' program falsely portrayed him as being involved in a conspiracy to murder, falsely depicted him as participating in a telephone wiretap to develop evidence, and falsely suggested he was a self-confessed murderer. With respect to his invasion of privacy cause of action, plaintiff alleged he was damaged by "the revelation that Plaintiff pleaded guilty to being an accessory after the fact to a murder for hire plot and the airing by Defendants of Plaintiff's photograph."

Defendants demurred to both causes of action, contending plaintiff was a limited-purpose public figure and could not demonstrate that defendants had made any defamatory statements with malice. Defendants also filed a special motion to strike the invasion of privacy claim under Code of Civil Procedure section 425.16 (section 425.16), the anti-SLAPP² statute.

Stating that "the gist or sting of [defendants'] report was accurate," the trial court sustained without leave to amend defendants' demurrer to the defamation cause of action. On the ground that "there is no authority which precludes civil liability for truthful publication of private facts regardless of whether the information is newsworthy," however, the court overruled the demurrer to the invasion of privacy cause of action. The court also denied defendants' anti-SLAPP motion as to the invasion of privacy cause of action, concluding that plaintiff had demonstrated a likelihood of prevailing thereon. (See 425.16, subd. (b)(1).) Defendants appealed from the order denying the anti-SLAPP motion. (§ 425.16, subd. (j).) The Court of Appeal reversed, relying primarily on Cox Broadcasting Corporation v. Cohn (1975) 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328, wherein the United States Supreme Court held that the State of Georgia could not constitutionally sanction a television station for publishing the identity of a deceased 17-year-old rape victim whose name the station's reporter had obtained by examining public court records. (Id. at pp. 494-495, 95 S.Ct. 1029.) The Court of Appeal held that, as a matter of law, plaintiff could not prevail on his invasion of privacy cause of action because defendants' disclosures were of truthful information contained in the public official records of a judicial proceeding and were, accordingly, protected under the First Amendment to the United States Constitution, as construed by the high court in Cox. We granted review.³

Discussion

The question presented is whether the trial court erred in concluding that plaintiff is likely to prevail on his cause of action for invasion of privacy. Plaintiff bases the cause of action on Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (Briscoe), wherein we held that actionable invasion of privacy may occur through the reckless, offensive, injurious publication of true, but not newsworthy, information concerning the criminal past of a rehabilitated convict. (Id. at p. 543, 93 Cal.Rptr. 866, 483 P.2d 34.) Defendants argue that Briscoe has been overruled by subsequent high court decisions, at least with respect to information a publisher obtains from public (i.e., not sealed) official records of judicial proceedings. For the following reasons, we agree with defendants.

Briscoe involved an action for invasion of privacy brought against a magazine publisher. The dispute arose when the defendant published an article disclosing that the plaintiff had committed a truck hijacking 11 years previously. The plaintiff alleged that his friends and his 11-year-old daughter, after learning for the first time from the defendant's article these true but embarrassing facts about his past life, had scorned and abandoned him. Conceding the truth of the disclosures, the plaintiff nevertheless contended that because the offense had occurred many years earlier and he had subsequently led a lawful, obscure life and achieved a place in respectable society, the use of his name in the defendant's article was not "newsworthy" and constituted therefore a tortious invasion of his privacy. (Briscoe, supra, 4 Cal.3d at p. 533, 93 Cal.Rptr. 866, 483 P.2d 34.)

In a unanimous opinion authored by Justice Peters, we held the plaintiff had stated a cause of action. (Briscoe, supra, 4 Cal.3d at p. 543,93 Cal.Rptr. 866,483 P.2d 34.) In reaching that conclusion, we traced the concept of the legal right to privacy from the seminal law review article by Warren and Brandeis, The Right to Privacy (1890) 4 Harv. L.Rev. 193. We noted that acceptance of the privacy right "has grown with the increasing capacity of the mass media and electronic devices with their capacity to destroy an individual's anonymity, intrude upon his most intimate activities, and expose his most personal characteristics to public gaze." (Briscoe, supra, at p. 533, 93 Cal.Rptr. 866,483 P.2d 34.) Recognizing "the potential conflict between freedom of the press and the right of privacy" (id. at p. 534, 93 Cal.Rptr. 866,483 P.2d 34), we distinguished between reports of "`hot news,' items of possible immediate public concern or interest" (id. at p. 535, 93 Cal.Rptr. 866,483 P.2d 34) that are "[p]articularly deserving of First Amendment protection" (ibid.), and "reports of the facts of past crimes and the identification of past offenders" with respect to which "reports of the facts ... are newsworthy" but "identification of the actor . . . usually serves little independent public purpose" (id. at p. 537, 93 Cal.Rptr. 866,483 P.2d 34). Noting the state's interest in the integrity of the rehabilitative process (id. at p. 538, 93 Cal. Rptr. 866,483 P.2d 34), we observed that even "the great general interest in an unfettered press may be outweighed at times" by the interest in affording an "opportunity for all but the most infamous [former criminals] to begin a new life" (id. at p. 540, 93 Cal.Rptr. 866,483 P.2d 34). Accordingly, we reasoned, a truthful publication is protected only if it is newsworthy and does not reveal facts so offensive as to shock the community's notion of decency. (Id. at p. 541, 93 Cal.Rptr. 866,483 P.2d 34.) We also discussed factors for determining whether an incident is newsworthy" "`[1] the social value of the facts published, [2] the depth of the article's intrusion into ostensibly private affairs, and [3] the extent to which the party voluntarily acceded to a position of public notoriety.'" (Ibid.)

Applying the foregoing, we concluded in Briscoe that "a jury could reasonably find that plaintiff's identity as a former hijacker was not newsworthy" (Briscoe, supra, 4 Cal.3d at p. 541, 93 Cal.Rptr. 866, 483 P.2d 34), that "revealing one's criminal past for all to see is grossly offensive to most people in America" (id. at p. 542, 93 Cal.Rptr. 866, 483 P.2d 34), and that the plaintiff had not voluntarily consented to the publicity accorded him. Therefore, we held, the plaintiff had stated a valid cause of action. (Ibid.)

Pursuant to Briscoe, supra, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34, plaintiff contends a jury could reasonably find that the fact he long ago pled guilty to...