Shulman v. Group W Productions, Inc.

KENNARD, J.,

Concurring.—Applying existing California tort law, the plurality opinion holds that to establish a cause of action for invasion of privacy by publication of private facts the plaintiff must show that a private fact was publicly disclosed, that the disclosure would be offensive and objectionable to a reasonable person, and that the private fact was not newsworthy. I agree that here summary judgment was properly entered against plaintiffs on that cause of action. There is, however, a tension between the plurality opinion’s rule of liability for publication of private facts and some aspects of the United States Supreme Court’s current First Amendment jurisprudence. In my view, the potential clash in this area of law between personal privacy interests and the First Amendment’s guarantee of freedom of speech and of the press warrants a more detailed examination than the plurality opinion has undertaken.

Privacy is a fundamental constituent of human identity and of the communities we inhabit. (See Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort (1989) 77 Cal. L.Rev. 957.) Preserving a sphere of private thought, speech, and action, and controlling who are to be let into that sphere and the conditions under which they may enter, is an essential part of human dignity and autonomy. We define ourselves by controlling what we disclose to the world and what we preserve from public view. In an earlier age, privacy was more easily maintained, for the social and physical barriers that protected it were either prohibitively costly or physically impossible to breach. Not so today, when the social and physical barriers that formerly protected our privacy are dissolving in the face of technological and economic changes. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 921 [ 59 Cal.Rptr.2d 696 , 927 P.2d 1200 ] (cone. & dis. opn. of Kennard, J.).) Personal information that previously could only have been gathered at great expense, or could not have been gathered at all, is now routinely collected, analyzed, packaged, and distributed instantaneously and at trivial cost. Our secrets, great or small, can now without our knowledge hurtle around the globe at the speed of light, preserved indefinitely for future *244 recall in the electronic limbo of computer memories. These technological and economic changes in turn have made legal barriers more essential to the preservation of our privacy.

The free flow of truthful information, however, is also a fundamental value of our society, embodied in the First Amendment to the federal Constitution. As the plurality opinion notes, the United States Supreme Court has not yet attempted to fashion a general rule striking a balance between our competing interests in preserving a sphere of personal privacy and in unfettered publication of truthful information. Because of the complexities of the problem, crafting a general rule in this area would not be an easy task. The authors of two prominent constitutional law treatises, for example, take opposite views on whether the First Amendment permits a cause of action for truthful publication of private facts. Professors Rotunda and Nowak would not allow the cause of action: “[I]n light of later constitutional cases, and given the general [First Amendment] rationale articulated by the Supreme Court over the years, the state should always recognize that truth is a defense in a defamation or right of privacy action . . . .” (4 Rotunda & Nowak, Treatise on Constitutional Law (2d ed. 1992) § 20.36, p. 231.) Professor Tribe, on the other hand, takes the view that the First Amendment permits the cause of action: “[W]hen government acts to limit the untrammeled gathering, recording, or dissemination of data or statements about an individual, of course it inhibits speech—but it also vindicates the individual’s ability to control what others are told about his or her life. Such control constitutes a central part of the right to shape the ‘self’ that any individual presents to the world.” (Tribe, American Constitutional Law (2d ed. 1988) § 12-14, p. 887.)

The plurality opinion tries to balance these two values by using the concept of newsworthiness to define a general limit on the scope of tort liability for disclosure of private facts; it acknowledges only a “theoretical risk” that the tort would intrude on expression protected by the First Amendment. (Plur. opn., ante, at p. 225, fn. 8.) I am not so sanguine.

The “newsworthiness” rule of liability may raise a number of concerns under at least some strains of the United States Supreme Court’s current First Amendment doctrine. First, turning as it does on an inevitably subjective determination of whether the public’s interest in a story is “legitimate” or “morbid,” the “newsworthiness” rule suppresses truthful speech on the basis of its content—the central evil of censorship. Content-based restrictions on speech bear a heavy burden, for “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” (Hurley v. Irish-American Gay, Lesbian and *245 Bisexual Group of Boston, Inc. (1995) 515 U.S. 557, 574 [ 115 S.Ct. 2338, 2347-2348 , 132 L.Ed.2d 487 ].) As Hurley explains: “The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis.” (Id. at p. 579 [ 115 S.Ct. at p. 2350 ].) “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” (Rosenberger v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 828 [ 115 S.Ct. 2510, 2516 , 132 L.Ed.2d 700 ].) Accordingly, “[c]ontent-based regulations are presumptively invalid.” (R. A. V. v. St. Paul (1992) 505 U.S. 377, 382 [ 112 S.Ct. 2538, 2542 , 120 L.Ed.2d 305 ].)

To the extent the United States Supreme Court has permitted content-based speech restrictions, it has required that the restrictions be justified by a “compelling” state interest and be the least restrictive means for achieving that interest. (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 786 [ 98 S.Ct. 1407, 1421 , 55 L.Ed.2d 707 ].) Indeed, without deciding whether truthful speech about private facts may ever be punished, the high court has specifically held that “where a newspaper publishes truthful information [concerning private facts] which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.” (The Florida Star v. B. J. F. (1989) 491 U.S. 524, 541 [ 109 S.Ct. 2603, 2613 , 105 L.Ed.2d 443 ], italics added.) The plurality opinion has not attempted to justify its liability rule by this test.

The individual or social harmfulness of speech with a particular content is rarely a justification for suppressing it. For example, in a decision summarily affirmed by the United States Supreme Court, the federal Seventh Circuit Court of Appeals struck down an Indianapolis ordinance banning constitutionally protected pornography that subordinated women because of the perceived harmfulness of such pornography, while permitting other constitutionally protected pornography. (American Booksellers Ass’n., Inc. v. Hudnut (7th Cir. 1985) 771 F.2d 323 ; affd., 475 U. S. 1001 [ 106 S.Ct. 1172 , 89 L.Ed.2d 291 ] [mem. opn.].) It could be argued that the “publication of private facts” tort is similarly unconstitutional, because it punishes the publication of a certain class of private facts—those that are not newsworthy—based on its perceived harmfulness while permitting publication of the same private facts if they are newsworthy.

Also, if this tort is to withstand constitutional scrutiny we must apply it not only to the press, the focus of the plurality opinion’s analysis, but also to *246 individuals who repeat the private facts of others in casual conversation. (The Florida Star v. B. J. F., supra, 491 U.S. 524, 540 [ 109 S.Ct. 2603, 2613 ] [“When a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant.”]; id. at p. 542 [109 S.Ct. at pp. 2613-2614] (cone. opn. of Scalia, J.) [ same].) Doing so could chill much private communication, a cost the plurality opinion does not discuss.

The tension between current First Amendment doctrine and the tort of publication of private facts is also reflected in the questionable constitutional validity of two of the precedents on which the plurality opinion relies. In both Melvin v. Reid (1931) 112 Cal.App. 285 [ 297 P. 91 ] and Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529 [ 93 Cal.Rptr. 866 , 483 P.2d 34 , 57 A.L.R.3d 1 ], California courts permitted the plaintiffs to bring claims for the publication of the fact that, as shown in official public records, they had been tried for (and, in Briscoe , convicted of) crimes many years before. In Briscoe , this court reasoned that the crime and conviction no longer were newsworthy and therefore publication of those facts could be suppressed. I doubt that the holdings of these cases have survived the high court’s holding in Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 496 [ 95 S.Ct. 1029, 1047 , 43 L.Ed.2d 328 ] that “the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records,” a prohibition that does not depend on the newsworthiness of the material published. (See also Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97, 103 [ 99 S.Ct. 2667, 2671 , 61 L.Ed.2d 399 ] [“once the truthful information was ‘publicly revealed’ or ‘in the public domain’ the court could not constitutionally restrain its dissemination”].) Certainly, a widespread application of Briscoe could significantly alter the practice of biography and history, for even in the case of notable figures much of what occurs in their private lives may have faded from the public mind and, under the plurality opinion’s test, may no longer be newsworthy by the time the biographer or historian arrives on the scene.

I do not doubt the need to protect individual privacy against the ever-increasing intrusions upon it. I do question whether the publication of private facts can be prohibited on the basis of the perceived newsworthiness of the facts without creating a conflict with current First Amendment doctrine. Others have also questioned whether this tort can be reconciled with the First Amendment. (Hall v. Post (1988) 323 N.C. 259, 267 [ 372 S.E.2d 711 ] [rejecting “constitutionally suspect” tort of publication of private facts because of its tension with the First Amendment]; Zimmerman, Requiem for a *247 Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort (1983) 68 Cornell L.Rev. 291, 306, 365 [arguing against adoption of the tort].) In particular, the “newsworthiness” standard makes liability turn on the sort of content-based subjective value judgments that have long been anathema in the United States Supreme Court’s First Amendment jurisprudence. It may be that someday that court will separate out private facts as a unique category of speech subject to special rules and a lesser degree of constitutional protection, as it has done for speech promoting commercial transactions. (See Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 758-760 [ 105 S.Ct. 2939, 2944-2946 , 86 L.Ed.2d 593 ] (plur. opn. of Powell, J.) [characterizing speech on matters of private concern as subject to less stringent protection under the First Amendment than speech on public affairs].) Even in the commercial speech arena, however, the high court has rarely upheld restrictions suppressing truthful, nonmisleading statements. (See, e.g., 44 Liquormart v. Rhode Island (1996) 517 U.S. 484 [ 116 S.Ct. 1495 , 134 L.Ed.2d 711 ] [striking down ban on advertising the price of liquor].)

As in other areas requiring the reconciliation of strong but competing social interests, I would continue to mark the boundaries between the First Amendment and the “publication of private facts” tort by the method of case-by-case adjudication, as the United States Supreme Court has done. (The Florida Star v. B. J. F, supra, 491 U.S. 524, 530 [ 109 S.Ct. 2603, 2607 ] [“The tension between the right which the First Amendment accords to a free press, on the one hand, and the protections which various statutes and common-law doctrines accord to personal privacy against the publication of truthful information, on the other, is a subject we have addressed several times in recent years. . . . [Although our decisions have without exception upheld the press’ right to publish, we have emphasized each time that we were resolving this conflict only as it arose in a discrete factual context.”]; Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. 469 .) Thus, I leave open the possibility that the plurality opinion’s “newsworthiness” rule may require further adjustment and revision in the future when we are presented with a case in which its application, unlike the situation here, would affirm liability for the publication of truthful private facts.

Mosk, J., concurred.