Shulman v. Group W Productions, Inc.

Page 843

74 Cal.Rptr.2d 843

18 Cal.4th 200, 955 P.2d 469, 26 Media L. Rep. 1737,

98 Cal. Daily Op. Serv. 4105,

98 Cal. Daily Op. Serv. 5985,

98 Daily Journal D.A.R. 5679

Ruth SHULMAN et al., Plaintiffs and Appellants, v. GROUP W PRODUCTIONS, INC., et al., Defendants and Respondents.

No. S058629.

Supreme Court of California

June 1, 1998.

As Modified on Denial of Rehearing July 29, 1998. ^*

John D. Rowell, Glendale, Lewis, Goldberg & Ball, Michael L. Goldberg, Mc Lean, Va., Paul & Stuart, Stuart Law Firm, Antony Stuart, Los Angeles, and William A. Daniels, Santa Monica, for Plaintiffs and Appellants.

Cornell Chulay, Los Angeles, Epstein, Becker & Green, Janet Morgan, Terry M. Gordon, Richard A. Hoyer, San Francisco, Tharpe & Howell, Donald F. Austin, Ventura, Davis, Wright, Tremaine, Kelli L. Sager, Karen N. Fredericksen and Frederick F. Mumm, Los Angeles, for Defendants and Respondents.

James E. Grossberg, Washington DC, as Amicus Curiae on behalf of Defendants and Respondents.

Neville L. Johnson, Los Angeles, and David A. Elder as Amici Curiae.

WERDEGAR, Justice.

More than 100 years ago, Louis Brandeis and Samuel Warren complained that the press, armed with the then recent invention of "instantaneous photographs" and under the influence of new "business methods," was "overstepping in every direction the obvious bounds of propriety and of decency." (Warren & Brandeis, The Right to Privacy (1890) 4 Harv. L.Rev. 193, 195-196 (hereafter Brandeis).) Even more ominously, they noted the "numerous mechanical devices" that "threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.' " (Id. at p. 195.) Today, of course, the newspapers of 1890 have been joined by the electronic media; today, a vast number of books, journals, television and radio stations, cable channels and Internet content sources all compete to satisfy our thirst for knowledge and our need for news of political, economic and cultural events -- as well as our love of gossip, our curiosity about the private lives of others, and "that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors." (Id. at p. 196.) Moreover, the "devices" available for recording and transmitting what would otherwise be private have multiplied and improved in ways the 19th century could hardly imagine.

Over the same period, the United States has also seen a series of revolutions in mores and conventions that has moved, blurred and, at times, seemingly threatened to erase the line between public and private life. While even in their day Brandeis and Warren complained that "the details of sexual relations are spread broadcast in the columns of the daily papers" (Brandeis, supra, 4 Harv. L.Rev. at p. 196), today's public discourse is particularly notable for its detailed and graphic discussion of intimate personal and family matters -- sometimes as topics of legitimate public concern, sometimes as simple titillation. More generally, the dominance of the visual image in contemporary culture and the technology that makes it possible to capture and, in an instant, universally disseminate a picture or sound allows us, and leads us to expect, to see and hear what our great-grandparents could have known only through written description.

The sense of an ever-increasing pressure on personal privacy notwithstanding, it has long been apparent that the desire for privacy must at many points give way before our right to know, and the news media's right to investigate and relate, facts about the events and individuals of our time. Brandeis and Warren were themselves aware that recognition of the right to privacy requires a line to be drawn between properly private events, words and actions and those of "public and general interest" with which the community has a "legitimate concern." (Brandeis, supra, 4 Harv. L.Rev. at p. 214.) As early as 1931, in the first California case recognizing invasion of privacy as a tort, the court observed that the right of privacy "does not exist in the dissemination of news and news events." (Melvin v. Reid (1931) 112 Cal.App. 285, 290, 297 P. 91.)

Also clear is that the freedom of the press, protected by the supreme law of the First and Fourteenth Amendments to the United States Constitution, extends far beyond simple accounts of public proceedings and abstract commentary on well-known events. "The guarantees for speech and press are not the preserve of political expression or comment on public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press." (Time, Inc. v. Hill (1967) 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456.) Thus, "[t]he right to keep information private was bound to clash with the right to disseminate information to the public." (Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 534, 93 Cal.Rptr. 866, 483 P.2d 34.)

Despite, then, the intervening social and technological changes since 1890, the fundamental legal problems in defining a right of privacy vis-a-vis the news media have not changed -- have, if anything, intensified. At what point does the publishing or broadcasting of otherwise private words, expressions and emotions cease to be protected by the press's constitutional and common law privilege -- its right to report on matters of legitimate public interest -- and become an unjustified, actionable invasion of the subject's private life? How can the courts fashion and administer meaningful rules for protecting privacy without unconstitutionally setting themselves up as censors or editors? Publication or broadcast aside, do reporters, in their effort to gather the news, have any special privilege to intrude, physically or with sophisticated photographic and recording equipment, into places and conversations that would otherwise be private? Questions of this nature have concerned courts and commentators at least since Brandeis and Warren wrote their seminal article, and continue to do so to this day. ¹

In the present case, we address the balance between privacy and press freedom in the commonplace context of an automobile accident. Plaintiffs, two members of a family whose activities and position did not otherwise make them public figures, were injured when their car went off the highway, overturning and trapping them inside. A medical transport and rescue helicopter crew came to plaintiffs' assistance, accompanied on this occasion by a video camera operator employed by a television producer. The cameraman filmed plaintiffs' extrication from the car, the flight nurse and medic's efforts to give them medical care during the extrication, and their transport to the hospital in the helicopter. The flight nurse wore a small microphone that picked up her conversations with other rescue workers and with one of the plaintiffs. This videotape and sound track were edited into a segment that was broadcast, months later, on a documentary television show, On Scene: Emergency Response. Plaintiffs, who consented neither to the filming and recording nor to the broadcast, allege the television producers thereby intruded into a realm of personal privacy and gave unwanted publicity to private events of their lives.

The trial court granted summary judgment for the producers on the ground that the events depicted in the broadcast were newsworthy and the producers' activities were therefore protected under the First Amendment to the United States Constitution. The Court of Appeal reversed, finding triable issues of fact exist as to one plaintiff's claim for publication of private facts and legal error on the trial court's part as to both plaintiffs' intrusion claims. Agreeing with some, but not all, of the Court of Appeal's analysis, we conclude summary judgment was proper as to plaintiffs' cause of action for publication of private facts, but not as to their cause of action for intrusion. ²

FACTS AND PROCEDURAL HISTORY

On June 24, 1990, plaintiffs Ruth and Wayne Shulman, mother and son, were injured when the car in which they and two other family members were riding on interstate 10 in Riverside County flew off the highway and tumbled down an embankment into a drainage ditch on state-owned property, coming to rest upside down. Ruth, the most seriously injured of the two, was pinned under the car. Ruth and Wayne both had to be cut free from the vehicle by the device known as "the jaws of life."

A rescue helicopter operated by Mercy Air was dispatched to the scene. The flight nurse, who would perform the medical care at the scene and on the way to the hospital, was Laura Carnahan. Also on board were the pilot, a medic and Joel Cooke, a video camera operator employed by defendants Group W Productions, Inc., and 4MN Productions. Cooke was recording the rescue operation for later broadcast.

Cooke roamed the accident scene, videotaping the rescue. Nurse Carnahan wore a wireless microphone that picked up her conversations with both Ruth and the other rescue personnel. Cooke's tape was edited into a piece approximately nine minutes long, which, with the addition of narrative voice-over, was broadcast on September 29, 1990, as a segment of On Scene: Emergency Response.

The segment begins with the Mercy Air helicopter shown on its way to the accident site. The narrator's voice is heard in the background, setting the scene and describing in general terms what has happened. The pilot can be heard speaking with rescue workers on the ground in order to prepare for his landing. As the helicopter touches down,...