Petition for Writ of Certiorari — Sussman v. American Broadcasting Cos.

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Supreme Court, U.S,

() FILED

99 8 40N0V16 199

ve Inthe

Supreme Gourt of the Anited States

MARK SUSSMAN, KER GERRIN, PERY CARTER, SIMONE LUND,

VANESE MCNEIL, AMIN A. FARUQI, BETTY KOSS, ROBERT BO-

ZOYAN, LILIAN HEDRICK, EVANGELINE RAGASA, CHRISTOPHER

ROGERS, PATRICIA HOPKINS, DERRICK C. LESHURRE, DEANNA

WILLIAMS, CANDICE A. DONOFRIO, CLAYTON A. MCVICKER,

Petitioner,

versus

AMERICAN BROADCASTING COMPANIES, INC., THOMAS ALBERT

OETGEN, STACY LESCHT, IRA ROSEN, RICHARD KAPLAN, WAL-

TER PORGES,

Respondents.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Professor David A. Elder Neville L. Johnson

218 Glenmary Counsel of Record

Cincinnati, OH 45220 Brian A. Rishwain

(513) 961-3537 Johnson & Rishwain, LLP

12121 Wilshire Boulevard

Suite 1201

Los Angeles, Ca 90025 r

(310) 826-2410 bh?

_ eS Fl ee

a =r

ISSUE PRESENTED

Does 18 U.S.C. §2511(2)(d), which prohibits illegal

electronic eavesdropping, immunize a defendant who commits a tort

or a crime if there was an intent to gather the news? The issue is one

of first impression for this Court and the decision below creates a split

as three other circuits provide a different rule. Compare the instant

case with Desnick v. American Broadcasting Companies, Inc. 44

F.3rd 1345, 1353 (7th Cir. 1995), which held that when a state or

federal crime or tort occurs in the context of secret taping, a violation

of the eavesdropping statute has occurred; Menda Biton v. Menda 796

F. Supp. 628 (D.P.R.1992), corrected, 812 F. Supp. 282 (D.P.R.

1992) and partial summ. judgment granted, in part, case dismissed, in

part, 812 F. Supp. 283 (D.P.R. 1993), and Deal v. Spears 780 F.

Supp. 618. (W.D. Ark. 1991)

TABLE OF CONTENTS

PAGE

Questions Passat 0... iiascce ce i

tale cf COMME. co. i casi staal eee ice. il

Falta cf AeA og pcos cig cree ek iv

Opinions Belew oo. 6s ccs. 4 2

Jurisdictional Statement ............................. 2

Relevant Constitutional Provisions, Treaties, Statutes,

Ordinances, and Regulations Involved .................. 2

Statement of the Case ...........0.0................. 2

ill

I. IF THIS CASE IS ALLOWED TO STAND, THEN THE

FEDERAL STATUTE WILL NO LONGER HAVE ANY

MEANING. THE DECISION OF THE COURT OF

APPEALS DOES NOT MAKE LOGICAL OR

PRAGMATIC SENSE. EVERY MEDIA DEFENDANT

FROM NOW ON WILL SIMPLY SAY THAT IT HAD AN

ALTRUISTIC PURPOSE WHEN IT COMMITTED THE

TORTS AND CRIMES IT DID TO GATHER THE NEWS.

IN THIS CASE, THE CALIFORNIA SUPREME COURT

UPHELD THAT THE TORT OF INTRUSION WAS

COMMITTED. IT IS CERTAINLY A QUESTION OF

FACT FOR A TRIER OF FACT TO CONSIDER AS TO

WHETHER ABC INTENDED TO COMMIT THESE

TORTS IN CONNECTION WITH THE STATUTE. THE

ULTIMATE USE INTENDED IS NOT AN INGREDIENT

OF THE FEDERAL STATUTE AND THERE IS NO

PRECEDENT FOR THIS STRAINED ANALYSIS. ......... 14

Il. THERE ARE IMPORTANT POLICY REASONS WHY

THE STATUTE AND THIS CULTURE DOES NOT

PERMIT SURREPTITIOUS TAPING, HAVING TO DO

WITH FUNDAMENTAL RIGHTS OF PRIVACY AND

DIGNITY ACCORDED ALLHUMAN BEINGS. ss 4

EE as Bie creas in eit vs 3c ce hae 28

Appendix

Opinion of the United States Court of Appeals

er a ere la

Decision of the District Court ................. 6a

Relevant Statutory Provisions ................. 1Sa

TABLE OF AUTHORITIES

Cases: Page

Ayeni v. Mottola 35 F.3d 680 (2d Cir. SREY hb dwene 0-0 dcos 21

Baugh v. CBS, 828 F. Supp. 745 (1993 N.D. eee 385s ses 21

Belluomo v. KAKE TV & Radio, Inc. (1979) 3 Kan.

App. 2d 461, 596 P.2d 832,844 ..................... 22

Bess v. Bess 929 F. 2d 1332, 1335,(Eighth Cir.

OPED crac besten Pies eee teste 18, 20

Bianco v. American Broadcasting Companies, Inc.

situate ii: ETE EE Te Le 18

Boddie v. American Broadcasting Companies, Inc.,

731 F. 2d 333, 338-39 (6th Cir. ce ee OE ren 17

Boddie v. American Broadcasting Co., Inc., 881

F.2d 267, 268 (6th Cir 1989), ........................ 17

Cohen v. Cowles Media, 501 U.S. 663 ee Eee 14

Copeland v. Hubbard Broadcasting, (Ct. App.

Minn. 1995) 526 N.W. 2d 402; ....................... 22

Deal v. Spears 780 F. Supp. 618, 625 (W.D. Ark.

| PPT EN tee POET EOTC ETOP TTT Te eT Te eer terre 20

Desnick v. American Broadcasting Companies, Inc.

44 F.3rd 1345, 1353 (7th Car. 1995), wc ccc ccesccees 18

Dickerson v. Raphael, 22 Mich. App. 185, 564 N.W.

EGE CIIT A. bia hc Sa ia 26

Food Lion Incorporated v. Capital Cities, ABC,) __

F. 3d 1999, WL 957738 (4th Cir, N.C... wee eee eee 7, 22

Friddle v. Epstein, 16 Cal. App. 4th 1649, 1661

| a rrr eee rir er re orl ee ae ee eee 24

Nicholson v. McClatchy Newspapers 177 Cal. App.

SOD, 521, F35 C BE, FRCS Sal sacar ete cnas. 21

Payne v. Norwest Corp., 911 F. Supp. 1299, 1304

CED. Bila Se © hela oaks RENEE ES 18

Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800

Gn SL Pre ere eri” Pe eens cy ea bee 20

Reporters Committee v. AT&T, 4 Med. L. Rptr. 1177

ites 5. Sere ee rreee ere rir were eo 21

Ribas v. Clark, 38 Cal.3d 355, 366, 696, 212 Cal.

a i. errr corer rrr. ie 20, 25

Tavernetti v. Sup. Ct., 22 Cal.3d 187, 192-193, 148

oe Fi SPrrerrrrrrrrrrerTeTerr rrr 20

Sanders v. American Broadcasting Companies, Inc.,

SOO POT I kooks csnstbavevanesn ues 4, 13

Shulman v. Group W. Productions, Inc., 18 Cal. 4th

WOOT, 60 caks Sesanuveeecn eee eae 15

Special Forces Ministries v. WCCO T V., 284

N.W.2d 789 (Minn. App 1998) ................00-0--. 22

Spiritual Psychic Church v. City of Azusa, 39 CA.

3d 510, 217 Cal. Rptr. 225 (1985). .................-... 7

Sussman v. American Broadcasting Companies,

Inc., 971 F. Supp. 432 (C.D. Cal. . Awkcee canted 2, 14

U.S. v. Sanusi, 813 F. Supp. 149 (EDNY Ea. svausens 21

Veilleux v. National Broadcasting Company, Inc., 8

F. Supp.2d 23 (D. Maine WEE: ccudecacvsnawen wee: 21

W.C.H. Waverly v. Meredith Corporation, 13 Media

Law Reporter 1648 (U.S.D.C. West. Dist. Mo.

in MEE Tre Pr ee 22

Wolston v. Reader's Digest Association, Inc. 443

U.S. 157, 169, 99 S. Ct. 2701 [ENTER Sav eveiceceo ree 17

California Penal Code

Pen CGE 6 bli ik ae eee 20

PT OEE | Wie sein s'd bebe secerieed:.

Misc.

Barringer, “Telling a Journalistic Coup from a

Crime,” New York Times, July 26, 1998, ..........

Calvert, “Sifting Through the Wreckage of ABC

Reportage: Little Victories, Big Defeats &

Unbridled Media Arrogance,” 19 COMM/ENT 795

FN dha sb suduae een ekse eee

Carter, “It’s Crowded in TV NewsMagazines,” The

New York Times, page C1, October 24, 1994; ......

Comment, “Get That Camera Out of My Face! An

Examination of the Viability of Suing ‘Tabloid

Television’ for Invasion of Privacy,” 51 Univ. of

pees LSP. TEATS 6 iso kd bes oo de chk cack

Comment, “Trash Tort or Trash TV?: Food Lion,

Inc. v. ABC, Inc., And Tort Liability of the Media

for Newsgathering,” 72 St. John’s Law Review 185

GT ot CEREAL T Rr Kcbekkeeiiwies eee

Gunther, “Hidden Camera, Hidden Agenda,” Detroit

Free Press, Section H, page 1, May 14, 1995. ......

Kurtz, “Hidden Network Cameras: A Troubling

Trend,” Washington Post, Page 1, November 30,

en MSE EEE Oey PPO E Tn cera ae eae

10, 17, 19,

1. aya

Vili

Lissit, "Out of Sight," American Journalism Review,

8. Seer Tey CE eere Terry eer eer Te ee

MacGregor, "Diluting the News Into Soft

Half-Truths," New York Times, June 4,1995 .......

Mirabella, "TV's Magazine Shakeout," Columbia

Journalism Review, March\April 1995; "_.........

S. Bok, Lying: Moral Choice in Public and Private

SN i ican dienes

Stunt Journalism points out at 9 U Fla. J. of L. and

Pe Fe 5 5a Ci es we oe aK sO

Wade, “The Tort Liability of Investigative

Reporters,” 37 Vand. L. Rev. 301 (1984); ..........

Walsh, Selby, & Schaffer, “Media Misbehavior and

the Wages of Sin: The Constitutionality of

Consequential Damages For Publication of

Ill-Gotten Information.” 4 William & Mary Bill of

Rights Focrmal VT) CISPR occ sce cece cessaces

Westin’s Privacy and Freedom (1967), ........--.

Statutes

SREIBA Bee Seka s cad Shaw see heres

rer a

18 U.S.C. §2511(2)(d),

a Fe oe ee ee ee ne eee eee se ee ee a oe

BP Ws PEED. | cc kc ncccucaddcwcdaavee

ee ae Se Seen Se ene

Deceit and violence --- these are the two forms of

deliberate assault on human beings.

Imagine a society, no matter how ideal in

other respects, where word and gesture could never

be counted upon. Questions asked, answers given,

information exchanged --- all would be worthless.

Were all statements randomly truthful or deceptive,

action and choice would be undermined from the

outset. There must be a minimal degree of trust in

communication for language and action to be more

than stabs in the dark. That is why some level of

truthfulness has always been seen as essential to

human society , no matter how deficient the

observance of other moral principles. Even the

devils themselves, as Samuel Johnson said, do not

lie to one another, since the society of Hell could

not subsist without truth any more than others.

A society, then, whose members were

unable to distinguish truthful messages from

deceptive ones would collapse, individual choice

and survival would be imperiled. The search for

food and shelter could depend on no expectation

from others. A warning that a well was poisoned

or a plea for help in an accident would come to be

ignored unless independent confirmation could be

found.

All our choices depend on our estimates of

what is the case; these estimates must in turn often

rely on information from others. Lies distort this

information and therefore our situation as we

perceive it, as well as our choices. A lie, in

Hartmann’s words, “injures the deceived person in

his life; it leads him astray.””!

S. Bok, Lying: Moral Choice in Public and Private Life (1978), at 18-19,

footnotes omitted. Sissela Bok, a medical doctor teaching ethics at the Harvard

Medical School, is one of the finest, most interesting scholars on privacy, and the

ethics of lying, you will ever read.

Liars are persuaded by their own excuses to a

degree that seems incredible to others.?

OPINIONS BELOW

The opinion of the United States Court of Appeals of the

Ninth Circuit is reported at Sussman v. American Broadcasting

Companies, Inc.,186 F. 3d 1200 (1999). The opinion of the district

court is reported at Sussman v. American Broadcasting Companies,

Inc., 971 F. Supp. 432 (C.D. Cal. 1997).

STATEMENT OF JURISDICTION

The Judgment of the United States Court of Appeals was

entered August 18, 1999. The jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

18 U.S.C. 2511

STATEMENT OF THE CASE

American Broadcasting Companies, Inc. (“ABC”) asked the

district court and the Ninth Circuit Court of Appeal to gut the federal

wiretapping statute, to say it has no teeth, and they did. As long as

there was an allegedly altruistic purpose to commit a crime, the lower

courts ruled, then the federal eavesdropping statute does not apply.

This is not the intent of Congress *, and in any event, ABC committed

numerous crimes and torts in this case, which it cannot rebut.

STATEMENT OF THE FACTS

ABC is the most notorious abuser of the right of privacy in

the United States, and is criticized by virtually every scholar writing

on the subject.‘ This is a fascinating case involving the ubiquitous

2 Id. at 86.

3 Judge O’Scanniain wrote of the act in United States v. Smith, 155 F. 3d 1051, 1056

(Ninth Cir. 1998).

When the Fifth Circuit observed that the Wiretap Act "is

famous (if not infamous) for its lack of clarity,” Steve Jackson

Games, Inc. v. United States Secret Service, 36 F.3d 457, 462

(Sth Cir. 1994), it might have put the matter too mildly.

* Consider the breadth of negative law review articles concentrating on ABC’s

and highly profitable hidden camera of television news magazines, the

modern form of Christians and lions journalism, where the

“defendant” is tried, convicted and sentenced in absentia in front of

15-20 million Americans, an electronic stockade.’

tactics. Smolla, “Will Tabloid Journalism Ruin the First Amendment for the Rest of

Us?” 9 Journal of Art and Entertainment Law | (1998); Lidsky, “Prying, Spying and

Lying: Intrusive Newsgathering and What the Law Should Do About It,” 73 Tulane

Law Review (1998); Logan, “Masked Media: Judges, Juries, and the Law of

Surreptitious Newsgathering,” 83 /owa L. Review 161 (1997); Logan, “‘Stunt

Journalism,"” Professional Norms and Public Mistrust of the Media,” 9 University of

Florida Journal of Law and Public Policy 152 (1998)[hereinafter Sunt Journalism);

Comment, “Get That Camera Out of My Face! An Examination of the Viability of

Suing “Tabloid Television’ for Invasion of Privacy,” 51 Univ. of Miami L. Rev. 936

(1997); Comment, “Trash Tort or Trash TV?: Food Lion, Inc. v. ABC, Inc., And Tort

Liability of the Media for Newsgathering,” 72 St. John’s Law Review 185 (1998);

Walsh, Selby, & Schaffer, “Media Misbehavior and the Wages of Sin: The

Constitutionality of Consequential Damages For Publication of [ll-Gotten

Information.” 4 William & Mary Bill of Rights Journal |111 (1996); Wade, “The

Tort Liability of Investigative Reporters,” 37 Vand. L. Rev. 301 (1984); Note,

“Intrusion and the Investigative Reporter,” 71 Tex. L. Rev. 433 (1992).

° Stunt Journalism points out at 9 U Fla. J. of L. and Public Policy at 155-156, that

The present age of undercover newgathering really took off in

1989, when the newsmagazine PrimeTime Live (PTL)

premiered on ABC, and became known for its use of hidden

cameras as a reporting tool. [fn. 43, Barry Meier & Bill Carter,

“Juries Slap Down TV Journalists’ Methods, Pitt Post-Gazette,

Dec. 24, 1996, at D1; see also Canellos, {ABC Ordered to Pay

$5.5 M to Food Lion Award Seen as Rebuke to Media, Boston

Globe, January 23, 1997 at Al} “In its relatively low-rated

first season, the show broadcast two undercover pieces.

Thereafter, it sharply increased the number of hidden-camera

segments, until they averaged more than 20 per season. Ratings

went up.”]

Stunt Journalism continues, 9 U Fla. J. of L. and Public Policy at 165:

Undercover stories are good for ratings. [fn omitted]

Stunts are broadcast to attract viewers and are prevalent during

“sweeps” periods, so that higher advertising rates can be

charzed.[fn. omitted] When PTL runs a hidden camera report it

most likely is the lead story. [fn. 111, Samuels {"SU Prof

Testifies in Food Lion Trial,” Syracuse Herald-Journal, Jan.

24, 1997, at A34}. Of 80 original stories using a hidden

camera that were featured on PTL between August 1989 and

September 1996, 61 led the broadcast.] These reporting

methods are themselves considered a marketing tool, as

advertisements for television newsmagazines often emphasize

the techniques used to gather a story, alongside the substance of

We are all aware that so-called television newsmagazines,

spearheaded by ABC, which is embroiled in litigation over this issue,

have declared war on the right of privacy, and seek to have the right

to spy on others via hidden cameras because they make a lot of

money doing so. This case is important, as the Ninth Circuit has

eviscerated the federal statute on privacy and interpreted it in a way

that makes impossible for anyone ever to bring an action — because

all a journalist has to do to win is say he is a journalist with a good

intent to be protected.

The plaintiffs here worked in management or as psychic

readers for the Psychic Marketing Group (“PMG”), which offered

services via a 900 number. ABC mounted the equivalent of an

espionage operation for the purpose of smearing them, although they

did nothing unlawful or illegal, and did sue, ultimately causing

massive ruination. The district court dismissed the instant case on

motion for summary judgment, taking the most conservative

approach possible.

On June 24, 1999, the California Supreme Court unanimously

ruled (the undersigned was prevailing lead counsel) that the conduct

complained of in this case constituted the tort of intrusion,

upholding a jury verdict of the same effect, for another victim of the

same conduct complained of in this case. Sanders v. American

Broadcasting Companies, Inc., 20 Cal. 4% 907 (1999). The plaintiffs

in this case were all co-workers with Mr. Sanders at PMG.°

of the story itself. [fn omitted]

Stunt Journalism explains that journalists cannot really call themselves

members of a profession because (1) there is no formal training; (2) clients cannot

adequately evaluate the quality of the services rendered; (3) there is no sublimation of

self-interest to the public good; and (4) there is no self-regulation. /d. at 157-158.

6 This case is about private searches and seizures by an entity that thinks it is

beholden to no one. The only "crime" of the plaintiffs was their belief they could read

tarot cards and tell fortunes. ABC has literally declared war in this case on the nght

of privacy of Americans and the people of California, and publicly stated this as

being their position.

Cox, National Law Journal, December 27, 1993, page 35:

Representing ABC, Andrew M. White of Century City's

Christensen, White, Miller, Fink & Jacobs declined to discuss

the [Sanders] case which is in pre-trial discovery. But he

stated he believes the legal projections afforded the press are

"quite clear." If there is any evolution in the near future, he

adds, it will be a shrinking of the individual's reasonable

expectation of privacy. (emphasis added)

soln Ba RAT MODY Sls Se

There had never been any complaints by anybody about the

Psychic Marketing Group ("PMG"), but ABC's show, PrimeTime Live

(now merged into 20/20), the most notorious abuser of hidden camera

journalism, decided it must have been doing something wrong and

proceeded to mount the equivalent of a CIA spy operation with secret

agents --- independent contractors --- who fraudulently represented

who they were, and set up a sting operation, just like a real police

department, to try and capture the news. ABC had never received

any information that PMG was using a 900 line to deceive the public,

The fairness of hidden cameras has become a major topic and focus of our

society. Sanders is the first in America to have gone to trial where a network was sued

for the tort of intrusion regarding hidden cameras, the first where compensatory

damages were awarded, the first where punitive damages were awarded, and the first

where private attorney general fees were awarded. It is irrefutable that ABC made

material misrepresentations to get the story, that it used impersonation, and that the

jury, when posed the question directly, found that Sanders did have a reasonable

expectation of privacy at the time he was secretly taped.

In the last two decades, network television newsmagazines in a

never-ending search for ratings which translates into revenues, have declared war on

the right of privacy we all enjoy as Californians and Americans. The most important

newspaper in the United States has written about the increasingly diminished

standards in journalism. Carter, “It’s Crowded in TV NewsMagazines,” The New York

Times, page Cl, October 24, 1994; MacGregor, “Diluting the News Into Soft

Half-Truths," New York Times, June 4, 1995, page 25, Kurtz, “Hidden Network

Cameras: A Troubling Trend,” Washington Post, Page 1, November 30, 1992

(Richard Kaplan, then Executive Producer of PrimeTime Live is quoted therein as

saying he would like to do a hidden camera story once a week.); Mirabella, "TV's

Magazine Shakeout," Columbia Journalism Review, March\April 1995; “Hidden

Camera, a Million Dollar Peek"; and Lissit, "Gotcha," American Journalism Review,

which discusses the instant case and many of the issues presented herein. See also

Lissit, “Out of Sight," American Journalism Review, Dec 1994, p. 27, which explains

the common ingredients of a news-magazine show: PrimeTime Live does “features”

(stories with stars, for example), late-breaking news, and “investigative pieces,” and

hidden camera stories because they are cheap and easy to produce, especially when

there is no need to get the point of view of the victim thereof.

Consider Barringer, “Telling a Journalistic Coup from a Crime,” New York

Times, July 26, 1998, Section 4, page 1, which observes that reporters’ ethics are

out of step with a public that is angry about sensationalism,

grand jury leaks and the press’s perceived arrogance.

Journalists who take little time to explain why the tawdrier side

of their work may be necessary can pay a price; lawyers who

put the news media’s ethics on trial are finding receptive juries.

...Breaking the law is almost universally taboo in the news

business.

they just thought that people who called such lines were wasting their

money.’

Mark Sussman was* a Vice-President at PMG: he was secretly

taped in a restaurant by ABC, and defrauded into attending the

meeting on false pretenses. Portions of this secret taping were shown

on the broadcast. He was also secretly taped in his office with the

doors closed.

Mark Sussman, Kerwin Garin®, Perry Carter, Simone Lund,

and Christopher Rogers were all trapped on the hidden camera and

featured on the broadcast (the remaining plaintiffs were captured on

the hidden camera, but not the broadcast), and their lives were

permanently and deleteriously harmed. '°

’ ABC's thesis was that those who worked at PMG were the equivalent of

unemployed actresses, and that they tried to keep suicide callers on the line. This was

all disproved in the Sanders case, and the jury (whose foreman was the Mayor of El

Monte, and a very conservative group of people) came back with a collective award in

excess of $1,000,000, including substantial punitive damages on the tort of intrusion.

This was a carefully orchestrated scheme, like The Truman Show (think

about it, it’s chillingly close, only this is real life), to star whomever ABC could snag

in a production the victims had no idea they were making, and it is all supposed to be

O.K. because ABC was literally inventing the news, acting as protagonists, as agent

provocateurs. The ending and the script were written long in advance for ABC’s little

morality play; it just needed to find some unwitting “heavies.” ABC needs ratings,

and has an inexorable need to fill-up its airwaves with “villains” of its own choosing,

people who in this and many other cases, are doing absolutely nothing wrong. This is

the case of where ABC went “fishing,” hunting for human game to blast on TV, more

grist for the television newsmagazine mill, another opportunity to tout its broadcast

with “another hidden camera report.” ABC’s sad position is that as a matter of law,

the workplaces of California have become the new sound stages for PrimeTime Live

and those of its ilk.

8 PMG ultimately went out of business; it became unprofitable after the broadcast.

9 Sussman and Garin were plaintiffs, but were precluded from the federal claims

because of the statute of limitations. All told, the story ruined the lives of hundreds of

persons, none of whom committed any unlawful acts of any nature; they were simply

“easy pickings” for a network that doesn’t like fortunetellers, yet its subsidiaries and

affiliates run advertisements for them. Perry Carter, Simone Lund, Amin A. Faruqi,

Betty Koss, Robert Bozoyan, Lilian Hedrick, Evangeline Ragasa, Christopher Rogers,

Patricia Hopkins, Derrick C. LeShurre, Deanna Williams, and Candice A. Donofrio

are the only remaining plaintiffs and petitioners. Koss, Bozoyan, Hedrick, Ragasa,

Hopkins, Williams and Donofrio were not depicted on the broadcast, just secretly

taped.

10 Perry Carter, an African American with a Doctorate in Education from Indiana

University, had a complete mental breakdown as a result of the taping, losing all long

term memory, can no longer work, his marriage broke up, and he is living on state aid.

Ret et ere oe tia ee

The right of privacy is one of the most important rights

known to man, and it revolves around a simple concept — that every

human being who walks the earth is entitled to dignity.

ABC's story was a classic hatchet job — it was factually

incorrect, and violated numerous fair standards and practices in

journalism — and the story was as unfair a story as has ever been

published.''

Mark Sussman was the supervising executive on the West

Coast for the PMG, where some of the hidden camera filming

occurred and the object of the ABC investigative report, and directly

supervised Vanese McNeil and Simone Lund. The remaining

plaintiffs were all psychic advisors at PMG.

ABC is, of course, one of the three major television networks

in America produced the report which is the subject of this action. It

taped hundreds of hours of footage at PMG’s offices in Baltimore and

Los Angeles.

Thomas Albert Oetgen ("Oetgen"), an ABC employee, was

the producer for the Report. Bob Calo ("Calo") also produced the

report. Stacy Lescht ("Lescht") had previously been a college intern

for PrimeTime Live in Washington, D.C., and was unemployed when

hired to become a hidden camera spy and paid-imposter for ABC for

the Report.

Ira Rosen ("Rosen") is employed by ABC and was a Senior

Producer for the Report; he is the leading producer of hidden camera

Rogers suffered enormous mental distress, humiliation and shunning. LeShurre

became homeless as a result of the secret taping. The other plaintiffs tell similar

stories. Florence Cloud, originally a plaintiff, passed away during these proceedings.

She was filmed as ABC pulled its "raid" — just like Elliot Ness in the days of old —

when it barged in on the closed offices of PMG so it couid film some ambush

interviews, and terrorize those who worked there. She testified that ABC caused her

to lose her best friend of 50 years, and to be humiliated in the community.

'' People visit psychics seeking a religious or quasi-religious experience, and

sometimes they just want someone to talk to about their love-life, dreams and\or

wishes. (The broadcast actually criticized PMG and Perry Carter because he had told

Lescht on the hidden camera that the company sold “hope,” as if there was something

wrong with that.) ABC’s smirking haughtiness about those who believe in the

psychic world is evident throughout this and the related cases, and the underlying

theme of the broadcast is that those who profess to be psychic should not be allowed

to do so. The California Supreme Court long ago determined that psychics are

protected by the First Amendment in Spiritual Psychic Church v. City of Azusa, 39

CA. 3d 510, 217 Cal. Rptr. 225 (1985). In other words, the plaintiffs were engaged in

a protected activity, making the intrusion and fraud all the more Outrageous.

Executive Producer for the Report.'? Walter Porges ("Porges") was

the executive in charge of program and practices at ABC who

authorized the filming by hidden camera.

The PMG was a business which provided information

services over a "900 telephone number." See R'°370: 1-2 The offices

of Psychic Marketing Group were private and not open to the public.

There was a reception desk and receptionist to intercept uninvited

visitors. The company had a strict "no visitors" policy. All

defendants were aware of this policy. /d. 3-7

ABC produced a television program entitled PrimeTime Live,

which utilizes a news style and purpoits to broadcast investigative

reports. It is the habit and custom of ABC News generally and

PrimeTime Live correspondents, cameramen, and investigators to use

hidden cameras to titillate their audiences, with PrimeTime Live under

the guise of “investigative journalism,” thus usurping the role of the

District Attorney or police department, who are required to obtain

search warrants. The subjects of the story have no opportunity to

present their point of view; this is what is so fundamentally offensive

and inhuman about hidden camera invasions. It is the equivalent of

the district attorney being the trier of fact, with the defendant absent

and not even aware he is on trial. PrimeTime Live intentionally

violated and violates the ethical rules of journalism, the California

Penal Code and the United States Code. Defendants have a mind-set

toward invading the privacy of citizens, because doing so provides

titillating journalism and because viewers like seeing persons caught

on hidden cameras.

ABC placed Stacy Lescht, their investigative reporter (but in

reality then an unemployed and recent college graduate, who last

heard from, sold shoes at the Baltimore women's store, Ann Taylor),

"undercover" as part of the "Hello Telepsychic" Investigative Report

at the premises of Psychic Marketing Group. At the same time, ABC

placed one or more hidden cameras on the premises at Psychic

Marketing Group to surreptitiously record the activities and

conversations of those who work there. These cameras were trained

12 Rosen and Kaplan were both individually found liable for punitive damages by the

Food Lion jury, reversed on other grounds , Food Lion Incorporated v. Capital

Cities, ABC,) __ F. 3d 1999, WL 957738 (4th Cir, N.C.)

13 “R” stands for “Record.”

eta y aaah id FHS

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i iia eae ck haley

on the plaintiffs and recorded the plaintiffs’ activities and

conversations while they worked. Playing the “part” of a newly

transferred employee from the Baltimore office, Lescht approached

virtually every employee at the Psychic Marketing Group and sought

to elicit personal information about them, which they would not have

otherwise divulged had they known Lescht was in reality a spy and

imposter whose intent was to "expose" them and harm them and

embarrass them in front of 20 or so million Americans. /d.

370:26-371:15.

ABC mounted at least four separate invasions of privacy and

utilizations of the hidden camera. ABC's thesis, which was

unsupported and proven to be false in the Sanders case, was that those

who were psychics were unserious about their work, and were the

equivalent of unemployed actresses. ABC made no attempt to obtain

legitimately, by ordinary journalistic methods, the information it

sought to prove, and did not follow accepted journalistic standards for

the utilization of hidden cameras, to the extent there even are any."

ABC made no meaningful attempt to gauge the harm that would be

caused by the utilization of the hidden cameras, and the episode was

an economic and mental holocaust upon those who were depicted in

the episode, and literally destroyed the lives of many of the plaintiffs

and damaged permanently the relationships they have with other third

parties. /d. 371:16-372:5.

In or about the last week of August 1992, Mark Sussman was

falsely told by Oetgen that Oetgen was a bona fide investor looking to

go into business with PMG, and a lunch meeting was set up at the

tony Peninsula Hotel in Beverly Hills. Sussman was secretly taped at

this meeting by Oetgen and Hill. There were no customers at any

other tables, and Sussman had a reasonable and complete expectation

of privacy.

Shortly thereafter, Oetgen and Hill attended a meeting in

Sussman's office where Sussman was also taped and the door was

shut.

ABC's report took comments out of context and portrayed

employees of PMG as engaged in frivolous activity with money as

'* An extensive article, with much original reporting, about ABC’s tactics in the

instant case is Gunther, “Hidden Camera, Hidden Agenda,” Detroit Free Press,

Section H, page 1, May 14, 1995.

their only motivation and without a good faith belief in their psychic

abilities.

Defendants' conduct is in direct contradiction to express

public policy in California. California has codified its public policy of

making the act of recording confidential communications unlawful

under Pena! Code §632, and defendants’ actions have violated that

law. Defendants have ignored this important public policy

consideration, continued with their behavior in a reckless manner, and

also violated their own internal policies. | ABC has repeatedly

admitted it gave no thought to the effect that the broadcast would have

on the lives of those captured by the hidden camera, albeit Richard

Kaplan has admitted being captured on the hidden camera is per se

indicative of wrongful conduct.'*

The eavesdropping was carried out by Lescht as the actual

taper, under the guidance of Oetgen and ABC producer, Calo. Ron

Hill and Steve Bell also participated in hidden camera taping: they

make their living as professional mercenary spies for television

networks.

At the trial of Sanders, portions of which were lodged with

the district court, the following testimony was elicited, establishing

that ABC did have the motive and intent to commit crimes and torts in

using the hidden camera, and the conduct of the participants in the

same was bereft of any concern for any of the plaintiffs in this or that

case. We summarized it for the district court:

Testimony of Richard Kaplan

Richard Kaplan was the Executive

Producer at PrimeTime Live who authorized the

hidden camera taping. He testified that when he

approved the hidden camera, he had no idea what

was going to be filmed, indicating complete

recklessness on his part. TR'®3091:1-4. Kaplan goes

on to state that the plaintiffs in Kersis (as also the

plaintiffs in the present action) were not the focus

of the story, that the "culprits" were the persons

who set up the psychic phone line. 3099:5-16;

3101:6-9.

'® The complaint also alleged spoliation of evidence of out-takes and transcripts.

'€ “TR” is the transcript in the Sanders trial.

AAO OSB Ra et ante Ae

Kaplan demonstrated a complete intention

to commit tortious conduct by admitting that he

gave no thought whatsoever to the legal

consequences of his conduct, but admitted that he

knew the hidden camera taping would be hurtful to

those depicted. 3105:6-3106:8; 3110:6-3111:7.

Kaplan admitted that the hidden camera is a

“dual-edged sword ... very unpopular with people

both in and out of the business because it is not an

America thing. It reeks a little of the KGB. We

don't like to be spied on." (emphasis added)

3111:20-28.

Most importantly, Kaplan admitted wishing

to defame the plaintiffs, to "cast aspersions" on

them. 3114:3-14.

Kaplan admitted to being aware that Lescht

was committing fraud on hundreds of third party

callers who were seeking psychic advice, and that

ABC was deeply concerned about the fact that she

was committing a fraud, but they let her do it

anyway. 3117:20-311911.

Finally, Kaplan admitted that being on a

hidden camera is per se indicative that the person

on camera has committed wrongdoing, in other

words, a naked admission that a defamation has

occurred. 3122:7-18.

f Albert Oct

Thomas Albert Oetgen was the producer of

the piece. He testified that Lescht's goal was to

commit fraud, for her to obtain the trust of those

with whom she worked so she could leam

information about them. 1601:19-21. Oetgen

admitted that the purpose of the broadcast was to

defame the plaintiffs, to show they were part of a

"scam." 1605:26-1606:4. He admitted to no

concern about defrauding the hundreds of callers

that Lescht spoke with. 1608:24-1609:7. Oetgen

recounted his numerous conversations with Rick

Mandler, ABC in-house attorney, indicating that

there were no discussions about the frauds that

ABC was committing.. 1610:17-1611-1612:8.

It is established in testimony that the

purpose of the broadcast was to commit the tort of

false light, with Oetgen admitting that statements

were taken out of context to make those who

worked at PMG look bad. 1614:18-1620:16.

Oetgen admitted that being on a hidden

camera is a per se defamation. 1640:3-14.

Oetgen admits that it is wrong to tape

where there are closed doors. 1683:27-1684-5;

1687:24-1688:5. Oe¢etgen admitted that he did not

establish or prove any of the key points he was

trying to make in the piece. 1695:6-1696:1696:7.

Oetgen admitted that the promotions for the

broadcast were defamatory, thus indicating, yet

again that the purpose of the broadcast was to

defame. 1709:24-1710:6.

Testimony of Stacy Lescht

Stacy Lescht was the ABC spy who utilized

the hat-cam to invade the privacy of her

co-workers. She testified to having no concern

about causing any emotional damage by her

conduct. 1773:1773:9-17. She indicated her

mandate was to find out any information she could,

_ that she was given essentially no direction, thus

undercutting ABC's argument that it did not intend

to commit any crimes or torts. 1774:22-1775:6.

Lescht admits that one of her purposes was

to steal trade secrets, including the names and

phone numbers of customers, and that she

successfully completed this task, and to steal the

employee handbook by use of a misrepresentation.

1777:16-1779-3.

Testimony of Frederick Steven Mandler

Frederick Steven Mandler is an in-house

attorney for ABC. He testified that he told Oetgen

not to film in closed areas. 2949:15-21. (However,

Oetgen did, which alone should prove intent to

commit a tort!)

Mandler admits that it is wrong in

California to tape telephone conversations.

299 1:2-2992:15. He admits to no thought

whatsoever about the propriety of stealing trade

| secrets, such as the names of customers.

2992:23-2993:2. Mandler admitted it was wrong to

tape everyone who worked at PMG and that was

not his advice to Oetgen. 3008:12-19. Mandler

admits that he was fully aware that Lescht was

making misrepresentations and committing fraud

but that did not bother him. 3014:28- 3020:15.

Mandler admitted that those depicted at

i PMG were accused of committing fraud on the

i show and that ABC had no evidence that any fraud

} had been committed, thus conceding that a

defamation had occurred. 3029:28-3030-12.

Mandler could cite no legal precedent that

allowed the taping. TR 22A:3005:14-22. The

taping was permissible because people “lie all the

time,” and the lies of Lescht about a false

boyfriend, a false move to Los Angeles, and

wanting to be a legitimate psychic were not

material lies, but he could not testify with any

expertise as to California law on the matter. Id.

3017:11-3019:17.

PROCEDURAL HISTORY

The case was originally filed in the Los Angeles Superior

Court on December 21, 199 4. However, to get it away from that

tribunal, where it had just lost Sanders, ABC removed the case,

claiming diversity, and plaintiffs thereafter amended to bring the

federal claim which is at the heart of this appeal.

On February 12, 1997, the district court granted summary

judgment for the ABC defendants on the federal eavesdropping claim,

essentially stating that journalists were exempt from laws of general

application when gathering the news. 971 F. Supp 432 (C.D. Cal.

1997)

ARGUMENT

I. IF THIS CASE IS ALLOWED TO STAND, THEN THE

FEDERAL STATUTE WILL NO LONGER HAVE ANY

MEANING. THE DECISION OF THE COURT OF APPEALS

DOES NOT MAKE LOGICAL OR PRAGMATIC SENSE.

EVERY MEDIA DEFENDANT FROM NOW ON WILL

SIMPLY SAY THAT IT HAD AN ALTRUISTIC PURPOSE

WHEN IT COMMITTED THE TORTS AND CRIMES IT DID

TO GATHER THE NEWS. IN THIS CASE, THE CALIFORNIA

SUPREME COURT UPHELD THAT THE TORT OF

INTRUSION WAS COMMITTED. IT IS CERTAINLY A

QUESTION OF FACT FOR A TRIER OF FACT TO

CONSIDER AS TO WHETHER ABC INTENDED TO COMMIT

THESE TORTS IN CONNECTION WITH THE STATUTE.

THE ULTIMATE USE INTENDED IS NOT AN INGREDIENT

OF THE FEDERAL STATUTE AND THERE IS NO

PRECEDENT FOR THIS STRAINED ANALYSIS.

The district court erred in granting a motion for summary

judgement on the federal eavesdropping claim, 18 U.S.C. Sections

2511 and 2525. It ruled that ABC was not liable because each

surreptitious taping was made by a party to the conversation.

Therefore, Plaintiffs may only recover if they can show that the

recordings were made for the purpose of committing a criminal or

tortious act. Sussman, 971 F. Supp 432, 436 (C.D. Cal. 1997)

The district court even went a step farther, making a

revolutionary ruling, one unsupported by any case anywhere in the

United States, or logic, that the First Amendment somehow

immunizes tortious and criminal conduct, in effect, that the First

Amendment somehow trumps the right of privacy. See footnote 3 of

District Court’s opinion. /d. This is unprecedented in American law

and directly contrary to the rule of Cohen v. Cowles Media, 501 U.S.

663 (1991), where the Court held that any balancing test was

inappropriate where the defendant violated a general rule of

applicability having only an incidental impact on newsgathering. See

also, Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692 (1999) the media

ride-along case, where the media was held to answer for trespassory

conduct, and conduct which violated the Fourth Amendment. The

Ninth Circuit, Berger v. Hanlon, 188 F. 3d 1155 (1999), recently

remanded that case (they are the same cases factually, but involve

different parties) for trial. What the Ninth Circuit did in Berger is

inconsistent with the ruling in this case — there the media was held

bess dine aE

for trial with respect to conduct which violated laws of general

applicability, yet in this case, the media was not held to such standard.

It is anomalous treatment. California is particularly strong in

enforcing rights of privacy. See Shulman v. Group W. Productions,

Inc., 18 Cal. 4th 200 (1998), where we were amici curiae in support

of privacy rights.

If the statute must be analyzed as to whether the conversations

recorded for the purpose of committing a crime or tort, then here, we

have many torts and crimes. Here, much of the taping does not

involve any communications at all, it is just secret taping of visual

images. This conduct violates the statute. Doe by Doe vs. BPS Grand

Services, Inc., 945 F. Supp. 1422 (8th Cir. 1991). While merely

taping the plaintiffs, Lescht was not a party to any conversations

between herself and any of the plaintiffs, just secretly observing and

recording them. No court has analyzed wiretapping in the foregoing

context, as to whether there is an exclusion from liability when the

person is recording images, as opposed to sound.

The most important words in 18 U.S.C. §251 1(2)(d),

italicized by us, are:

It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a

wire, oral, or electronic communication where such

person is a party to the communication ... unless

such communication is intercepted for the purpose

of committing any criminal or tortious act in

violation of the Constitution or laws of the United

States or of any State.

According to the Ninth Circuit ruling in this case, the

determining factor is:

Plaintiffs here have pointed to no statute or caselaw

indicating that it was tortious or illegal for ABC to

air the tapings made by Lescht., citing as authority

a case which has since been depublished. 186 F. 3d

at 1203.

Did Congress really intend this strained interpretation? We've

got torts and crimes galore here: intrusion, fraud, intentional infliction

of emotional distress, negligent infliction of emotional distress, theft

of trade secrets, trespass, and false impersonation, which apparently

the Ninth Circuit concedes occurred, but there is no liablity because it

may not be a crime or tort to publish information which was obtained

by the same, therefore the federal statute is not implicated.

One federal court recently rejected the notion that Federal law

on eavesdropping somehow permitted a bootstrap argument that

allowed a tort when there was wiretapping: Tapley v. Collins, 41 F.

Supp 1366, 1369, fn. 5 (So. Dist. Ga. 1999):

“Because Congress intended to allow the States to

supplement [federal law in this area,] .... State law

will be preempted only if it conflicts with, or if it is

more permissive than, the federal law. Thus, the vast

majority of States and the District of Columbia have

enacted statutes regulating the interception of oral and

wire communications." S.L. Kepecky, Dealing With

Intercepted Communication: Title Ill of the Omnibus

Crime Control and Safe Streets Act In Civil

Litigation, 12 Rev.Litig, 441, 442 (1993) (quotes and

footnotes omitted; brackets original and added); see

also Ann., Construction and application of state

statutes authorizing civil cause of action by person

whose wire or oral communication is intercepted,

disclosed, or used in violation of statutes, 33 ALR4th

506.

The same court noted the absurdity of trying to argue that a

crime was ever permitted to establish a crime. Tapley at 1377.

Defendants point out that the “right to recover under an

invasion of privacy theory is restricted where matters of public

interest are involved." Wilson v. Thurman, 213 Ga. App. 656, 658,

445 S.E.2d 811 (1994) (quotes and cite omitted); .... Wilson, however,

is easily distinguishable because the public officials there acted on

allegations of criminal conduct conveyed to them by a third party. 213

Ga. App. at 656. In contrast, Collins himself violated federal and State

law in producing the very product for which he now claims to have

acted in the public interest.

Like the proverbial “chutzpah” character who murders

his parents but then pleads for mercy because he's an

orphan, defendant is estopped from claiming that

defense here.

Indeed, this Court has refused on other occasions to permit

the media to bootstrap, such as using the argument that it can make

someone a limited purpose public figure just by giving them unwanted

publicity. Wolston v. Reader's Digest Association, Inc. 443 U.S. 157,

elt Be spat Bor

)

;

169, 99 S. Ct. 2701 (1979); Hutchison v. Proxmire 443 U.S. 111, 136,

99 S. Ct. 2675 (1979).

ABC committed the tort of intrusion, according to the

California Supreme Court and a jury. That apparently is not good

enough for the federal statute; plaintiffs must show that the intended

use as opposed to the crime/tort of obtaining the illegal booty was

wrongful. How did ABC know what it was going to get when it

decided to commit the crime? It decided to commit the crime/tort,

that should be enough.

The plaintiffs stated valid claims for fraud.'’ Additionally,

the following other crimes and torts were committed: intrusion,

intentional interference with contractual relations, invasion of privacy

(under the California State Constitution), defamation, violation of

Penal Code Section 632 et seq. and false light — although these were

dismissed because of the statute of limitations.'* However, these are

all valid and viable torts or crimes, and just because they have been

dismissed because they are outside the statute of limitations, that does

not immunize ABC from its tortious and criminal conduct. It was

ABC's intent to commit these torts as part of their newsgathering

scheme at the time the scheme was conceived. ABC should not now

be allowed to avoid liability just because the plaintiffs may have

waited to long to press their case against the network for some of their

claims. Just because there may have been a failure to prosecute the

claims in a timely manner, does not mean that the defendants did not

intend the acts they committed.'®

'’ ABC's entire defense on this issue was that the claim for fraud was no good

because plaintiffs suffered only so-called publication damages. The district court

agreed with this, although there was substantial evidence to the contrary. This does

not mean the plaintiffs did not suffer damages from the fraud, and even though they

may have been barred under that claim because of procedure, they are not barred frorn

asserting the claim under the applicable federal statute, and are entitled at least to

nominal damages. Further, many of the petitioners were not even on the broadcast,

just taped against their will in a context having nothing to do with ABC’s story, let

alone any wrongdoing on their part. The Court of Appeals never addressed these

issues.

'® ABC presented no evidence that it had not committed these crimes and torts.

'? ABC argued that the deletion of the phrase "any other injurious act" from the

previous version of the act thereafter allowed journalists to tape conversations in the

course of their newsgathering activities as long as they did not make the tape for the

express purpose of committing a crime or a tort, citing Boddie v. American

Broadcasting Co., Inc., 881 F.2d 267, 268 (6th Cir 1989), but that is exactly the

Desnick v. American Broadcasting Companies, Inc. 44 F .3rd

1345, 1353 (7th Cir. 1995), specifically held that when a state or

federal crime or tort occurs in the context of secret taping, then a

violation of the eavesdropping statute has occurred.”” Menda Biton v.

Menda, 796 F. Supp 628, (D.P.R.1992), corrected, 812 F. Supp. 282

(D.P.R. 1992) and partial summ. judgment granted, in part, case

dismissed, in part, 812 F. Supp. 283 (D.P.R. 1993), stands for the

same proposition, as does Deal v. Newell 780 F. Supp. 618 (W.D.

Ark. 1991). Thus, there is now a split of authority between circuits.”'

The Menda Biton court’s reasoning makes sense, 796 F. Supp at 630:

gravamen of this clam —- ABC was committing numerous CRIMES AND

TORTS.

The court should understand the procedural history of this case. Prior to

modification of the statute, the court held that there was a question of fact as to

whether in the context of an interview with a television reporter there was an

expectation that the interview was_not being recorded, and whether such expectation

was justified under the circumstances. Boddie v. American Broadcasting Companies,

Inc., 731 F. 2d 333, 338-39 (6th Cir. 1984), citing Bianco v. American Broadcasting

Companies, Inc. (N.D. Ill. 1979), noted:

There may be some circumstances where a person does not

have an expectation of total privacy, but still would be

protected by the statute because he was not aware of the

specific nature of another's invasion of privacy.

The later Boddie opinion, cited in the main text above, found the “injurious

purpose" language unconstitutionally vague and remanded the case for further

proceedings but Congress passed the amendment while the case was on remand.

20 In Desnick, however, there were no applicable state or federal torts or crimes pled.

Applicable state law did not recognize the tort of intrusion, and the fraud statute

differs from that of most other states, requiring a continuing pattern of conduct. That

court found no expectation of privacy for “testers” of that doctor's clinic, and there

was no right of privacy stated for the corporate plaintiff in that case. This case has

nothing to do with testers, but rather the creation of an elaborate sting operation using

numerous impostors, numerous misrepresentations by ABC, the obtaining of trade

secrets and confidential information under false pretenses.

” The Court of Appeals relied upon Payne v. Norwest Corp., 911 F. Supp.

1299, 1304 (D. Mont. 1995) to support its finding, and adopted the same logic; “that

the focus is not upon whether the interception itself violated another law; it is upon

whether the purpose for the interception — its intended use —— was criminal or

tortious.” This rule does not make sense and will gut the statute. First, what if the

illegally obtained video was never shown? That is the case here. There are some 30

hours of surreptitious video taping by ABC, the broadcast is about 13 minutes in

length. ABC and any media defendant is always going to say that the intent was to

broadcast news, that is why they lied, stole, cheated, defrauded, committed (you name

the felony), to obtain the information which tured out to be inconsequential, as here.

There was no news in secretly taping the petitioners, no wrongdoing exposed by them

This statute produces a hybrid criminal

offense since it invites state law to define the

offense. Therefore, the Court must look to the laws

of the Commonwealth to fill in the blanks provided

by Congress.

Puerto Rico's legislature deemed a

prohibition against wiretapping to be such a

comerstone of Puerto Rican cultural values that it

made it part of the Commonwealth's Constitution.

P.R. Const. Art. II §§ 10; see Camacho v.

Autoridad de Telefonos de Puerto Rico, 868 F.2d

482, 485 (1989). As if this were not enough, the

Puerto Rican legislature has made it a crime,

punishable by imprisonment, to record private

conversations without the express consent of all the

parties. 33 L.P.R.A. §§ 4186. The legislature has

similarly made it a crime to disclose the contents of

unconsented recorded conversations. 33 L.P.R.A.

§§ 4187. [n2 Other wiretap crimes are also found

in Puerto Rico's penal code. See 33 L.P.R.A. §§§§

4185, 4188, and 4190.] This Court is of the opinion

that §§ 2511(2)(d), as it presently reads, applied in

conjunction with the Constitution and laws of this

Commonwealth, will not permit the use of

unconsented wiretapped recordings as evidence in

civil proceedings. ][n3 The Court is aware, as

defendants’ attorney pointed out, that there is case

law from other circuits which reaches the contrary

result. See cf: Park v. El Paso Board of Realtors,

764 F.2d 1053 (Sth Cir. 1985). This case, however,

was decided prior to the 1986 amendment version

of section 2511(d)(2), which deleted the words "or

for the purpose of committing any injurious act"

from the end of the proviso. ] Thus, there is a

strong likelihood that plaintiff will prevail on the

merits of his case.

The tort of violation of the California Penal Code §632 for

illegal eavesdropping occurs under the California statute at the

or their company.

moment of the violation; the taping is illegal, as well as an subsequent

use. Ribas v. Clark, 38 Cal.3d 355, 366, 696, 212 Cal. Rptr. 143

(1985) This is the rule in other circuits, see e.g. Bess v. Bess 929 F.

2d 1332, 1335,(Eighth Cir. 1991) and Deal v. Spears 780 F. Supp.

618, 625 (W.D. Ark. 1991) (taping of phone conversations to

investigate a theft held improper), with that court observing in the

latter case:

No action was taken by either defendant to limit the

scope of their intrusion or the privacy of the

plaintiffs and the other people whose conversations

they recorded.”

2 The Ribas Court quoted with approval from the California Supreme Court en banc

case, Tavernetti v. Sup. Ct., 22 Cal.3d 187, 192-193, 148 Cal. Rptr. 883 (1978),

which held that California Penal Code §631 prohibits:

three separate acts: (1) intentional wire tapping, (2) willful

attempts to learn the contents of communication in transit, and

(3) attempts to use or publicize information obtained in either

manner." The press can be made subject to restrictions to gather

the news. The Supreme Court, upholding the Government's

refusal to validate passports for reporters traveling to Cuba

wrote that: “The right to speak and publish does not carry with

it the unrestrained right to gather information." Zemel v. Rusk,

381 U.S. 1, 17, 85 S.Ct. 1271, 1281 (1965).

Newsmen have no constitutional right of access to the scenes of crime or

disaster when the general public is excluded, and they may be prohibiting from

attending or publishing information about trial if such restrictions are necessary to

assure a defendant a fair trial.

A reporter has “no special immunity from the application of

general laws. He has no special privilege to invade the rights

and liberties of others." (The Associated Press v. Nat. Lab. Rel.

Bd. (1937) 301 U.S. 103, 132-133, 57 S. Ct. 650) First

Amendment decisions do not stand for the proposition that the

press and its representatives are immune from liability for

crimes and torts committed in news gathering activities simply

because the ultimate goal is to obtain publishable material."

(Nicholson v. McClatchy Newspapers, 177 Cal.App.3d 509,

$18, 223 Cal.Rptr. 58 (1986); and see Galella v. Onassis (2d

Cir. 1973) 487 F. 2d 986, 995.... A free press is not threatened

by requiring its agents to operate within the bounds of basic

decency. /d. at 996." KOVR-TV, Imc. v. Superior Court

(Whittle), 31 Cal.App. 4th 1023, 1032, 37 Cal. Rptr. 2d 431

(1995).

This Court continued with this line of reasoning in upholding a California

statute limiting news gathering in California prisoms. Pell v. Procunier, 417 U.S. 817,

94 S.Ct. 2800 (1974). See also, Houchins v. KQED, 438 U.S. 1, 98 S.Ct. 2588

Likewise, there was no attempt to limit the taping in any way.

ABC had no idea what it was going to discover; it taped hours of

people doing nothing wrong. You cannot have a pure intent when

there is such willy nilly wholesale taping.

The plaintiffs were defrauded by ABC's misrepresentations

via its numerous operatives/cub reporters/spies/mercenaries who are

masquerading in this Court as journalists. Courts recognize that there

is no hidden camera exception for television news magazines, and that

for a journalist to misrepresent his or her identity —- what occurred

here —~ is simple, common law fraud.”?

(1978).

And see, Los Angeles Free Press, Inc. v. City of Los Angeles, 9 Cal. 3d 448,

88 Cal. Rptr. 605 (1970), cert. denied 440 U.S. 949 (what law enforcement officers

considered sociological coverage did not necessarily qualify a newspaper for a press

pass.)

Any news gathering right is subject to those general and incidental burdens

that arise from good faith enforcement of valid civil and criminal laws. Reporters

Committee v. AT&T, 4 Med. L. Rptr. 1177 (D.C. Cir. 1978), where it has been held

that reporters are not privileged to commit crimes and independent torts in gathering

the news, and the press has no constitutional right of access to information.

Nicholson v. McClatchy Newspapers \77 Cal. App. 509, 521, 223 Cal. Rptr. 58

(1986).

Another extremely interesting case confirming this in another context, is

Ayeni v. Mottola 35 F.3d 680 (2d Cir. 1994), when CBS reporters accompanied

government agents on a bust and this was found to be a violation of the Fourth

Amendment. This and related cases are fascinating reading. U.S. v. Sanusi, 813 F.

Supp. 149 (EDNY 1992) (tape ordered produced), and Ayeni v. CBS, Inc., 848 F.

Supp. 362 (EDNY 1994) authored by The Honorable Jack B. Weinstein, author of the

leading treatise on federal evidence. The court of appeal wrote that camera crew did

not serve “any legitimate law enforcement purpose,” and authored the now-classic

line that a “private home is not a sound-stage for law enforcement theatricals,” and

that:

The purpose of bringing the CBS camera crew into the Ayeni’s

home was to permit public broadcast of their private premises

and thus to magnify needlessly the impairment of their right to

privacy. Ayeni, 35 F3d at 686.

That’s exactly what happened here: the Psychic Marketing Group became a

private sound-stage for a news-magazine theatrical. ABC engages in vigilante

journalism, conduct which no law enforcement agency can do, and which, if the

government had been involved, would have been a violation of the Fourth

Amendment.

23 Baugh v. CBS, 828 F. Supp. 745 (1993 N.D. Cal.); Veilleux v. National

Broadcasting Company, Inc., 8 F. Supp.2d 23 (D. Maine 1998)claim for fraud

permitted against newsmagazine for false promises about nature of broadcast); Buller

To allow a “free pass to get out of jail “ because one is a

journalist, would eviscerate the federal statute and encourage future

intrusions.”* It would make a fool of the law for a felonious tort-

feasor to escape liability merely by uttering the magic words, “I did it

to get a story.” If that is the rule, then caveat emptor for our society.

From now on, there will be no federal rule against wiretapping as it

v. Pulitzer Publishing, 684 S.W. 2d 473 (Mo. 1984\no consent where, in order to

obtain interview with psychic, reporter used pseudonym and otherwise concealed her

identity); W.C.H. Waverly v. Meredith Corporation, 13 Media Law Reporter 1648

(U.S.D.C. West. Dist. Mo. 1986), held that it is common law fraud for a journalist to

misrepresent himself to gather the news. In Natoli v. Sullivan, 21 Media Law

Reporter 2097 (1993New York Supreme Court, Oswego County), that court ruled

that federal wiretap claims for relief could be pled against a newspaper which had

come into possession of illegally obtained wiretaps. ABC just lost again, although it

was a pytthic victory in Food Lion, Incorporated v. Capital Cities, ABC, _ F.3d

__1999, WL 957738 (4® Cir. N.C.). Other cases holding that it is wrong to lie to

obtain footage are Copeland v. Hubbard Broadcasting, (Ct. App. Minn. 1995) 526

N.W. 2d 402; Belluomo v. KAKE TV & Radio, Inc. (1979) 3 Kan. App. 2d 461, 596

P.2d 832, 844 [TV station obtained footage under false pretenses, and the Court of

Appeal ruled that as to a trespass claim: “/f the purported consent was fraudulently

induced, there was no consent.” (emphasis added)}; Special Forces Ministries v.

WCCO T.V., 284 N.W.2d 789 (Minn. App 1998) (upholding the denial of a summary

judgment motion brought by undercover false employees working for a hidden

camera television investigation. They were held to answer for claims of fraud,

trespass, and defamation.)

** Note the comment to BAJI (The Committee of Standard Jury Instructions, Civil, of

the Superior Court of Los Angeles County, California, 1999 Revision) § 7.20 which

discusses damages in a right of privacy context.

The gist of the action, unlike defamation, is not injury to

character or reputation but to one's feelings and peace of mind

and is subjective which may be more acute than bodily

injury. Fairfield v. American Photocopy Equipment Co., 138

Cal.App. 2d 82, 86 (1955) and Werner v. Times-Mirror Co.,

193 Cal.App. 2d 111, 120.(1961) (emphasis added)

The tort in this case was not only the video taping of the plaintiffs; it was

also the broadcasting of the pictures. The broadcasting of the pictures constitutes a

separate actionable invasion of privacy. There is a difference between keeping a

picture in a drawer and broadcasting it on national television.

Further, the conduct is not judged in a vacuum. Pictures were broadcast in a

vicious, contrived, blatantly false story concocted to titillate the public and

specifically to do damage to those depicted. Tens of millions of people watched a

story where these plaintiffs and all who worked at PMG were accused of being

swindlers, working for con-men and pimps.

applies to journalists. Moreover, and this case is the perfect example,

it will allow wrongdoers to act with outrageous impunity.”

We established the elements of intrusion, fraud, trespass, theft

of trade secrets, illegal wiretapping under the California Penal Code;

surely a trier of fact should be allowed to evaluate these facts in light

of the federal statute.

It is the act of taping which is wrong, it is irrelevant

whether the information was broadcast or intended for broadcast.

Consider the irony, we have established the tort of intrusion

and had it confirmed by the highest court in California but that is not

good enough! What more are we supposed to do? It’s a question of

fact for the trier of fact.

There was, until now, no Ninth Circuit authority on the issue,

and this is a case of first impression for the United States Supreme

Court. In any event, plaintiffs meet any applicable criteria.

ABC even admits in footnote 8 of its brief to the Ninth

Circuit, with the testimony of Oetgen, the producer, that there was no

other way to get the information sought except by invading the

privacy of the plaintiffs. In other words, ABC admits committing the

torts of intrusion, fraud, trespass, and theft of trade secrets, of

committing a crime to gather the news, classic ends justifies the

means journalism.”°

There was taping of phone conversation by plaintiffs with

third parties, which violates Penal Code §631(a), prohibiting the

taping of telephone conversations. Throughout the tapes, Lescht

25 In an action based upon California Penal Code § 632 (the state wiretapping

statute), in which the defendants asserted the absolute judicial privilege under Civil

Code Section 47(b), the California Supreme Court held that the privilege does not bar

recovery for tortious conduct, regardless of the purpose for which the conduct was

undertaken. Kimmel v. Goland, 51 Cal. 3d 202 (1990).

Finally, in an analogous situation, one involving Penal Code §632, where it

was asserted there could be no damages because there was no disclosure, the court of

appeal found that this was no bar, especially in light of the legislative mandate to

“accord every citizen's privacy the utmost sanctity." Friddle v. Epstein, 16 Cal. App.

4th 1649, 1661 (1993).

*6 This Court can take guidance from Dickerson v. Raphael, 22 Mich. App. 185, 564

N.W. 2d 85 (1997), where Sally Jesse Raphael and her production company were

found liable for surreptitiously taping an individual in a public park, where one of the

participants in the taping was voluntarily wearing a microphone.

taped one side of telephone conversations plaintiffs had with third

parties. The purpose of the taping was to violate the law, literally to

tape the plaintiffs having phone conversations. Further, Lescht was

not a party to these conversations, and therefore cannot even claim

any exemption.

Additionally, the purpose of the hidden camera taping was to

obtain trade secrets of PMG, their customer lists, how they did their

business, and generally all the information that Oetgen admitted was

not available publicly. This violates California trade secret law.

Finally, the testimony of the ABC defendants indicates that the

purpose of the hidden camera taping was to defame the plaintiffs. The

Court of Appeals never addressed the numerous torts committed, but

rather just made a sweeping statement that petitioners did not prove

that ABC intended to commit the torts for other than First

Amendment purposes!

What it comes down to is this. People don't ever act for the

purpose of committing a tort—— they do so because they derive some

other benefit. Let's say a state law says its illegal to tape without both

parties’ consent, (as California Penal Code Sec. 632 prohibits) and this

occurs. Can a journalist say, “I didn't mean to commit a tort, I only

wanted to get my story?” The question then would be whether the

First Amendment would bar the claim. If Congress didn't intend for

the defendants’ actions to be actionable if they rose to the level of a

tort, then they would have included language that said if the actions

do not rise to the level of a tort or a crime then there would be no

action under Federal law. The law of Torts doesn't require one to

know if they are actually committing a tort. This Court should have a

lot of trouble with the proposition that if you can do something that

amounts to a tort or a crime, then it is for the purpose of doing it if

you know you are committing it, and it is not for the purpose of doing

it if you are mistaken about the state of the law. We can't see how a

purpose changes depending on how one is informed or misinformed

about the state of the law.

il. THERE ARE IMPORTANT POLICY REASONS WHY THE

STATUTE AND THIS CULTURE DOES NOT PERMIT

SURREPTITIOUS TAPING, HAVING TO DO WITH

FUNDAMENTAL RIGHTS OF PRIVACY AND DIGNITY

ACCORDED ALL HUMAN BEINGS.

Let us examine the policy reasons as to why our culture does

not want anybody, including the press, making secret tapes. Alan

arreeeenienneiannimaiaiiiil

Westin’s Privacy and Freedom (1967), is a profound work of

scholarship and thought, providing a historical, philosophical and

sociological context to privacy. Westin writes about the need for

privacy even in the animal kingdom (/d. 8-10); the need for privacy in

primitive societies (/d. at 17). American needs for privacy derive

from our national experience in frontier life, freedom from feudal

heritage, religious freedoms, and the desire for civil liberty. In

democratic societies, privacy exists to provide personal autonomy,

(/d. at 33), to allow for self-evaluation (/d. at 36), and to allow for

limited and protected communications, essential to any free society,

which has the salutary goals of allowing confidences to be shared with

those who are trusted, and to set boundaries in interpersonal relations.

(/d. at 37-38).

Just as with individuals. ... organizations need the

right to decide when and to what extent their acts

and decisions should be made public. /d at 42.

Given the penchant of society for idealized models,

privacy is necessary to that organizations may do

the divergent part of their work out of public view.

The adage that one should not visit the kitchen of a

restaurant if one wants to enjoy the food is applied

daily in the grant of privacy to organizations for

their staging processes. Privacy affords the

relaxation which enable those who are part of a

common venture, public or private, to communicate

freely with one another and to accomplish their

tasks with a minimum of social dissembling for

“outside” purposes. Without such privacy, the

operations of law firms, businesses, hospitals,

welfare agencies, civic groups, and a host of other

organizations would be seriously impaired. (/d. at

45)

Ribas v. Clark, 38 Cal.3d 355, 696, 212 Cal. Rptr. 143 (1985)

held that the:

secret monitoring denies the speaker an important

aspect of privacy of communications — the right to

control the nature and extent of the first hand

dissemination of his statements. Ribas, 38 Cal.3d

at 362.

Dr. Sissela Bok has written two interesting books which

relate to the issue before you: Secrets (1982) [“Secrets”], 178, and

Lying: Moral Choice in Public and Private Life (1978)[”Lying”], In

Secrets, at 255-298, we learn that the media’s traditional rationale or

excuse for any breach of society’s rules is the “public’s right to

know,” which Doctor Bok points out is “rhetorical nonsense.”

Ronald Dworkin has argued ... that the right

to speak does not entail or mirror the right to know;

at most he holds, it may support a right to J/isten,

and thus not have the government interpose

obstacles to that right between willing speakers and

willing listeners. But such a right to listen is “very

different from the right to know, because the latter,

unlike the former, supposes that those who have the

information have a duty and not simply a right to

publish it. The Supreme Court has not recognized a

right to know as a constitutional right. No one

could sue the New York Times for not publishing

the Pentagon Papers.”

Bok details (id at 259-262) the exploits of Gunter Wallraff,

who obtained employment at a German newspaper under false

pretense, and rips him apart. Wallraff had three rationalizations. The

first is that his victims were so steeped in deceit and coercion, they

cannot be said to complain. Bok points out that this does not justify

his methods. His second excuse is that his deceits are small in

comparison to the vast conspiracies he uncovered. (/d at 262).

By itself, this argument is also insufficient.

No matter how deceitful or lawless the powers that

Wallraff hoped to unmask, he might well agree that

ordinary reportorial means should be proffered

whenever possible. A third argument comes to the

support of the preceding two — it claimed

necessity. ...

This argument resembles those made for

deceit in war. Ordinary channels of correction and

control have broken down; law and morality cannot

be counted upon; more primitive principles come

into operation, justifying actions with claims such

as “All is fair in love and war.”...

Arguments of this kind are sometimes to

the point, but they are peculiarly likely to function

as rationalization. They obscure reasoning and

invite bias of every kind. They often exaggerate

the crisis at hand, and the conspiratorial nature of

opponents, and they underestimate the adequacy of

other methods of investigation. Wallraff could not,

in effect, demonstrate either conspiracy or crisis in

the newspaper he was investigating, nor show why

the many shady practices that he uncovered could

be exposed only by means of infiltration. For

journalists as for social scientists and other probers,

the infiltrator is often seeking shortcuts for which

the more experienced have no need.

In Lying, Dr. Bok explains that liars want a “free-rider” Status,

giving them the benefits of lying without the risks

of being lied to. Some think of this free rider status

as for them alone. Others extend it to their friends,

social group, or profession. This category of

persons can be narrow or broad; but it does require

as a necessary backdrop the ordinary assumptions

about the honesty of most persons. The free-rider

trades upon being an exception, and could not exist

in a world where everybody chose to exercise the

same prerogatives. Jd. at 23.

How is the liar affected by his own lies?

The very fact the he knows he has lied, first of all,

affects him. He may regard the lie as an inroad on

his integrity; he certainly looks at those he has lied

to with a new caution. And if they find out that he

has lied, he knows that his credibility and the

respect for his world has been damaged. /d at 24.

The liar’s self-bestowed free-rider status,

then, can be as corrupting as all other unchecked

exercises of power. There are, in fact, very few

“free rides” to be had through lying. /d at 26.

Isn’t this what the Ninth Circuit has afforded ABC

— fie-rider status?

Veracity is not only in conflict with the

other principles when lies are told. Some claim

they lie so as to protect the truth. To lie for the

sake of the truth — this is surely the most

paradoxical of excuses.

Once revealed, the gap is especially

shocking in someone whose profession ideally

requires a concern for truth. When judges and

scientists are caught in fraud, the sense of betrayal

is great. A fraudulent scientist goes against the

most fundamental standards of science. Jd at 84-85.

In as much as journalists are supposed to be the paragons of

truth, then allowing them to lie is the ultimate conundrum from which

there is no moral escape.

CONCLUSION |

The dismissal by the district court should be reversed and this

case should go to trial. The rule of the lower two courts effectively

nullifies the federal wiretapping statute. Journalists may not commit

crimes and torts to gather the news. How can it be said that ABC had

an innocent intent when it secretly taped hundreds of persons in a

private setting using fraud to do so, with no restrictions upon the

taping whatsoever?”’

Are we a nation of eavesdroppers? Can journalists commit

crimes and torts just because they have a press card? Does the First

Amendment immunize the crimes and torts because the information

gets published? What about all the taping of the plaintiffs which was

never shown on television? Can ABC tape anybody anywhere at

anytime because there may be news if it does so?

How many more lives, careers and families must be ruined

before this democracy accords respect to everyone in society? Being

27 ABC thinks it can outsmart the United States Congress and the people of the

United States. It is prime time for it to learn that news is not gathered at the expense

of human dignity. Tasseled-loafer wearing producers hiding in New York

skyscrapers, playing at being grown-up Hardy Boys and Nancy Drew, must subjugate

their voracious thirst for ratings to the right to be left alone. This was no great expose,

but as evidenced by the ruling by the California Supreme Court in Sanders, a fraud by

ABC on the public.

on a hidden camera is a brutalization, a psychological beating from

which no one ever recovers. It has been ABC’s blood sport and only

recently has the public begun to fight back.”

Never has this Court sanctioned as protected by the First

Amendment an invasion of personal privacy by the media in gathering

the news. Indeed, in Cohen v. Cowles Media, this Court staunchly

refused to accord the media a special exemption from rules of general

applicability. The lower courts startling misinterpretation of the

Federal wiretapping statute runs counter to this philosophy and

imputes to Congress a bizarre intent that contravenes, logic, law, and

fundamental human values.

Privacy is an endangered fundamental freedom, a federal and

state Constitutional right, and as each day goes by, we as a people

cherish it more. This is the paradigm case. The statute will live or die

depending on what you do. Lives, reputations, the will of Congress

hang in the balance.

- The American public, fed up with what it increasingly views as unfair,

inaccurate and sensational journalism, is paying less attention to mainstream news

media and watching or reading with far less enthusiasm than ten years ago, according

to a new nationwide poll.

The public is especially critical of network news... It

found that only 26% of American say that they enjoy watching

network news “a great deal,” down sharply from 42% in a 1985

poll.

Past polls have also found increasing public criticism

of the news media but the latest Pew Center survey paints 2

much starker picture of press credibility and the public’s

growing alienation from the mainstream media.

The survey comes as news organizations, as well as

newspaper and network television executives, are studying

ways to establish better rapport between the media and a public

that is spending less time reading newspapers and watching

television news. Favorable ratings for network television news

have fallen steadily from 30% in 1985 to 27% in 1992 to just

15% this year registering a very favorable opinion. Network

news viewership has also fallen sharply, with only 42% saying

that they watch nightly network news regularly, compared with

60% in 1993.

The majority of the public — 56% — now believes

news stories are often inaccurate. In 1985, by contrast, 55%

said news organizations generally got their facts straight.

Nelson, “Major News Media Trusted Less,” Los Angeles

Times, March 21, 1997, page A21.

Respectfully submitted,

Neville L. Johnson

Attorney for Petitioners

Johnson & Rishwain

12121 Wilshire Boulevard

Suite 1201

Los Angeles, Ca 90025

(310) 826-2410

(Any footnotes trail end of each document)

186 F.3d 1200

No. 97-55410

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

| MARK SUSSMAN; KEN GERRIN; PERRY CARTER;

SIMONE LUND; VANESE MCNEIL; AMIN A. FARUQI;

BETTY KOSS; ROBERT BOZOYAN; LILIAN HEDRICK;

EVANGELINE RAGASA; CHRISTOPHER ROGERS;

PATRICIA HOPKINS; DERRICK C. LESHURRE; DEANNA

WILLIAMS, Plaintiffs-A ppellants,

Vv.

AMERICAN BROADCASTING COMPANIES, INC., dba

KABC-TV Inc.; THOMAS ALBERT OETGEN; BOB CALO;

RICHARD KAPLAN; WALTER PORGES; IRA ROSEN;

STACY LESCHT; AMERICAN BROADCASTING

COMPANIES, INC.; CLAYTON MCVICKER,

Defendants-Appellees.

November 3, 1998, Argued and

Submitted, Pasadena, California

August 18, 1999, Filed

COUNSEL:

Neville L. Johnson, Neville L. Johnson & Associates, Los

Angeles, California, for the plaintiffs-appellants.

Steven M. Perry, Munger, Tolles & Olsen, Los Angeles,

California, for the defendants-appellees.

JUDGES:

Before: Alex Kozinski and Andrew J. Kleinfeld, Circuit Judges,

and Owen M. Panner, * District Judge. Opinion by Judge

Kozinski.

OPINIONBY:

ALEX KOZINSKI

OPINION:

OPINION

KOZINSKI, Circuit Judge:

We decide whether ABC's surreptitious videotapings during an

investigation of the Psychic Marketing Group could have violated

18 U.S.C. § 251] (1994), the federal wiretapping statute.

ABC hired Stacy Lescht to pose as a psychic telephone advisor in

order to gain access to the offices of the Psychic Marketing Group

(PMG). While working in the Los Angeles office of the PMG,

Lescht used various surveillance devices to record the activities

around her. Some of these recordings were aired in a segment of

the ABC News program Prime-Time Live.

Soon thereafter, two PMG employees who had been taped filed

suit in state court alleging various causes of action, including

invasion of privacy by photography.' The jury found for plaintiffs

on this claim but the California Court of Appeal reversed. See

Sanders v. American Broad. Cos., 52 Cal. App. 4th 543, 60 Cal.

Rptr. 2d 595, 599 (Cal. Ct. App. 1997).? The California Supreme

Court, in turn, reversed the Court of Appeal, holding that the

covert taping of office conversations by a television reporter could

be actionable as an invasion of privacy. See Sanders v. American

Broad. Cos., 20 Cal. 4th 907, 978 P.2d 67 (Cal. 1999).

Prior to the Supreme Court's ruling, more than a dozen current and

former PMG employees, plaintiffs here, filed a law-suit based on

the same conduct as in Sanders; plaintiffs asserted, inter alia,

claims for eavesdropping under /8 U.S.C. § 2511.3 Defendants

subsequently removed the case to federal court. The district court

granted defendants’ motion for summary judgment and plaintiffs

appeal.

II i

Section 2511 reads in pertinent part:

It shall not be unlawful under this chapter for a person

not acting under color of law to intercept a wire, oral,

or electronic communication where such person is a

party to the communication or where one of the

parties to the communication has given prior consent

to such an interception unless such communication is

intercepted for the purpose of committing any

criminal or tortious act in violation of the Constitution

or laws of the United States or of any State.

18 U.S.C. § 2511(2)(d) (emphasis added). Because ABC was not

acting under color of law, and because Lescht was always a party

to the conversations being taped,‘ the case turns on the

underscored portion of the statute, which asks whether the

interception was "for the purpose of committing any criminal or

tortious act." The district court ruled that it was not, because ABC

had done the taping for news gathering purposes: "Where a

journalist is party to a conversation, the recording of such a

conversation for news gathering purposes is not criminal or

tortious conduct within the meaning of the statute." If the district

court interpreted section 2511 as containing a blanket exemption

for journalists, we cannot agree. Congress could have drafted the

Statute so as to exempt all journalists from its coverage, but did

not. Instead, it treated journalists just like any other party who

tapes conversations surreptitiously.

The district court may have meant, however, that defendants

were exempt because they had a lawful purpose for the

surreptitious taping, namely news gathering. The court may have

reasoned that any time the interception serves a lawful purpose, it

perforce does not violate section 2511. But the existence of a

lawful purpose does not mean that the interception is not also for a

tortious or unlawful purpose. For example, assume that a news

gathering organization secretly videotapes bedroom activities.

Even though there may be a legitimate news gathering purpose

(e.g., listening for "pillow talk" about some newsworthy event),

public airing of such a tape may be illegal or tortious under state

law. Under these circumstances, the taping could be for both a

legitimate purpose (news gathering) and also an unlawful or

tortious purpose (airing private intimate conduct). The existence of

the lawful purpose would not sanitize a tape that was also made

for an illegitimate purpose; the taping would violate section 251 1.

Plaintiffs here have pointed to no state statute or caselaw

indicating that it was tortious or illegal for ABC to air the tapings

made by Lescht. In fact, the California Court of Appeal recently

emphasized that "newsworthiness . . . is a complete bar to liability

for publication of private facts and is evaluated with a high degree

of deference to editorial judgment.” Marich v. QRZ Media, Inc.,

73 Cal. App. 4th 303, 86 Cal. Rptr. 2d 406, 419 (Cal. Ct. App.

/999). While plaintiffs have claimed that ABC's story was

factually incorrect and unfair, they have never claimed it was not

newsworthy. Nor do they argue that the tape was made for the

purpose of committing some other subsequent crime or tort.

Rather, plaintiffs point to Sanders and argue that the taping itself

was tortious. If an otherwise lawful taping violates section 251 |

when committed for a prohibited purpose, argue plaintiffs, the

section must also be violated when the taping itself is illegal or

tortious. This argument finds no support in the statute. Under

section 2511, "the focus is not upon whether the interception itself

violated another law; it is upon whether the purpose for the

interception--its intended use--was criminal or tortious." Payne v.

Norwest Corp., 911 F. Supp. 1299, 1304 (D. Mont. 1995), aff'd in

part and rev'd in part, //3 F.3d 1079 (9th Cir. 1997). See also

Deteresa v. American Broad. Cos., 121 F.3d 460, 467 n.4 (9th Cir.

1997) (emphasizing the distinction between a taping that is itself

tortious or criminal, and one carried out for the purpose of

committing some other crime or tort). Where the taping is legal,

but is done for the purpose of facilitating some further

impropriety, such as blackmail, section 2511 applies. Where the

purpose is not illegal or tortious, but the means are, the victims

must seek redress elsewhere.

Although ABC's taping may well have been a tortious invasion of

privacy under state law, plaintiffs have produced no probative

evidence that ABC had an illegal or tortious purpose when it made

the tape. We may affirm the district court on any basis supported

by the record. See, e.g., United States v. Albers, 136 F.3d 670, 672

(9th Cir. 1998). ;

AFFIRMED.

' It is unclear whether plaintiffs had pleaded this in their

complaint, as the state trial judge sua sponte instructed the jury on

the elements of the " 'sub-tort' of 'the right to be free of

photographic invasion.'" Sanders, 60 Cal. Rptr. 2d at 596.

2? The reversal was only as to one of the plaintiffs; the other

one, Naras Kersis, died during the pendency of the proceedings,

and so his suit was dismissed.

} Plaintiffs also raised various state law claims but none of

those are at issue in this appeal.

* Plaintiffs argue that Lescht taped some conversations to

which she was not a party, but they have presented no evidence

supporting this claim.

CV 94-8524 JMI (Ex)

UNITED STATES DISTRICT COURT FOR THE CENTRAL

DISTRICT OF CALIFORNIA

971 F. Supp. 432

MARK SUSSMAN, et al.,

Plaintiffs,

Vv.

AMERICAN BROADCASTING COMPANIES, INC., et al.,

Defendants.

February 12, 1997, Decided

February 12, 1997, Filed

COUNSEL:

For MARK SUSSMAN, KER GERRIN, PERRY CARTER,

SIMONE LUND, VANESE MCNEIL, AMIN A FARUQI,

PERRY CARTER, III, FLORENCE CLOUD, BETTY KOSS,

ROBERT BOZOYAN, LILIAN HEDRICK, EVANGELINE

RAGASA, CHRISTOPHER ROGERS, PATRICIA HOPKINS,

DERRICK C LESHURRE, DEANNA WILLIAMS, CANDICE A

DONOFRIO, BILLIE YVONNE MAY, CLAYTON MCVICKER,

plaintiffs: Neville L Johnson, Neville L Johnson & Associates,

Los Angeles, CA.

For AMERICAN BROADCASTING COMPANIES INC dba

KABC-TV Inc, BOB CALO, RICHARD KAPLAN, WALTER

PORGES, IRA ROSEN, STACY LESCHT, defendants: Shari

Cohen Rosenman, Christensen Miller Fink Jacobs Glaser Weil &

Shapiro, Los Angeles, CA.

For AMERICAN BROADCASTING COMPANIES INC dba

KABC-TV Inc, RICHARD KAPLAN, WALTER PORGES, IRA

ROSEN, STACY LESCHT, defendants: Michael J O'Connor,

White O'Connor Curry & Avanzado, Los Angeles, CA.

For SYLVIA CHASE, THOMAS ALBERT OETGEN, RICHARD

KAPLAN, WALTER PORGES, IRA ROSEN, STACY LESCHT,

AMERICAN BROADCASTING COMPANIES INC, defendants:

Steven M Perry, Munger Tolles & Olson, Los Angeles, CA.

For BOB CALO, defendant: Andrew M White, Michael J

O'Connor, White O'Connor Curry & Avanzado, Los Angeles, CA.

For AMERICAN BROADCASTING COMPANIES INC,

defendant: Andrew M White, White O'Connor Curry & Avanzado,

Los Angeles, CA.

JUDGES:

James M. Ideman, United States District Judge.

OPINIONBY:

James M. Ideman

OPINION:

ORDER GRANTING DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT

IT IS HEREBY ORDERED:

Defendants' Motion for Summary Judgment came before this

Court on Monday, February 10, 1997. After careful review and

consideration, Defendants' motion is hereby GRANTED.

BACKGROUND

Plaintiffs are the owners and employees of Psychic Marketing

Group ("PMG"), a company which provides psychic advice via a

900 telephone number service. Plaintiffs sued Defendants, a

television network (ABC), its employees and journalists, for

conducting and broadcasting an undercover investigation of

PMG's operation.

While working for the investigative news show "PrimeTime

Live," Defendant Stacy Lescht ("Lescht") misrepresented to PMG

that she worked at another office of PMG and was seeking work in

Plaintiffs’ offices. Using a hidden camera and microphone, Lescht

recorded conversations with PMG employees about the operations

of PMG. The business practices of PMG observed by Lescht

inspired a subsequent "ambush interview," where an ABC reporter

and camera crew entered the PMG premises and questioned PMG

employees about PMG's operations. The footage from the hidden

camera and the subsequent open interviews were then broadcast

nationally.

After surviving several motions to dismiss, Plaintiffs filed a

Third Amended Complaint on January 19, 1996. In their Third

Amended Complaint, Plaintiffs allege: (1) Violation of Federal

Eavesdropping Statute and Conspiracy to Eavesdrop (/8 U.S.C. §

§ 2511, 2525); (2) Fraud and Conspiracy to Commit Fraud; (3)

Unlawful Eavesdropping on or Recording of Confidential

Communication (Cal. Penal Code § 632(a), 637.2); and (4)

Spoliation of Evidence.

SUMMARY JUDGMENT STANDARD

Defendants move for summary judgment pursuant to Fed. R. Civ.

P. 56. Summary judgment is proper where, based on the

appropriate materials submitted, the moving party shows that there

exists no genuine issue of material fact for a jury to decide.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d

202, 106 S. Ct. 2505 (1986). Where the mOving party satisfies its

burden, the non-moving party may not rest on its pleadings or

allegations; it must set forth specific facts showing that no genuine

issue of material fact exists. Fed. R. Civ. P. 56(e).

STATE STATUTORY CLAIMS

Defendants argue, and Plaintiffs now concede, that Plaintiffs’ state

Statutory causes of action for Unlawful Eavesdropping on or

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Recording of Confidential Communication (Cal. Penal Code §

632(a), 637.2) are time-barred by the statute of limitations.

Therefore, summary disposition is proper as to these claims.

DEFENDANT SYLVIA CHASE AND PLAINTIFFS CLOUD

AND MAY ARE DISMISSED FROM THIS ACTION

Plaintiffs also concede that they have "no viable claims" against

Defendant Sylvia Chase. Further, Mr. Neville Johnson, Plaintiffs'

attorney, maintains that Plaintiffs Florence Cloud and Billie

Yvonne May should be dismissed from this action. Accordingly,

Plaintiffs May and Cloud are hereby DISMISSED WITHOUT

PREJUDICE pursuant to Fed. R. Civ. P. 41(a){(2). All claims

against Defendant Chase are hereby DISMISSED WITH

PREJUDICE.

FRAUD AND CONSPIRACY TO COMMIT FRAUD

The remaining Plaintiffs assert against Defendants Lescht and

Oetgen common law causes of action for fraud and conspiracy to

commit fraud. In the Third Amended Complaint, Plaintiffs allege

that the intrusions caused by Defendants Oetgen and Lescht's

surreptitious recordings gives rise to damages.' In California, the

elements of fraud are: (1) a misrepresentation of fact; (2) made

with knowledge of its falsity (scienter); (3) made with the intent to

induce reliance; (4) justifiable reliance; and (5) resulting damage.

Magpali v. Farmers Group, Inc., 48 Cal. App. 4th 471, 55 Cal.

Rptr. 2d 225, 233 (2 Dist. 1996).

Defendants first argue that Plaintiffs cannot prove a claim of fraud

because no resulting damage has been shown. Plaintiffs contend to

the contrary. See Declarations of Perry Carter, et al. In this Court's

opinion, however, this is a non-genuine issue of fact which must

be resolved in favor of Defendants on summary judgment.

Defendants have submitted substantial deposition testimony which

clearly shows that Plaintiffs admit that their alleged damages in

this action were caused by the ABC broadcast, not by the

intrusions of Lescht and Oetgen. See Dec. Of Steven M. Perry. In

deposition after deposition, Plaintiffs state in frank terms that their

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damages were caused solely by the ABC broadcast and by nothing

else. Id.

In response, Plaintiffs submit ten declarations, taken after

Plaintiffs depositions and created solely for the purpose of this

motion. See Decs. Of Perry Carter, et al. Each declaration contains

identical language and directly contradicts prior deposition

testimony. In these declarations of convenience, Plaintiffs attempt

to salvage a cause of action that they have all but admitted do not

exist.? Therefore, Plaintiffs' last-minute declarations do not create

a triable issue of fact for a Jury to decide.

Also, Defendants point out another valid reason to grant

summary judgment. Defendants argue that Plaintiffs' fraud claims

are time-barred by the one year statue of limitations as stated in

Cal. Code Civ. Pro. § 340(3). Generally, the statute of limitations

is three years for claims of fraud. Cal. Civ. Pro. Code § 338(d).

However, the statute of limitations rule to be applied hinges on the

essential "nature of the right sued upon or the principal purpose of

the action, not by the form of the action or the relief requested."

Barton v. New United Motor Co., 43 Cal App. 4th 1200, 1207 (1

Dist. 1996). While Plaintiffs make claims of fraud and conspiracy

to commit fraud, their claims in essence hinge on the invasion of

privacy alleged. "Plaintiffs would never have engaged in any

conversations with and revealed any information to Lescht, Bell,

Hill, and Oetgen had they known the truth behind the false

representations." Third Amended Complaint, P 40. While wrapped

in the rubric of fraud, Plaintiffs’ claims more accurately assert

personal privacy interests, and the one year statute of limitations

should apply. Cal. Code Civ. Pro. § 340(3). Accordingly, because

Plaintiffs did not file the Complaint until 19 months after the ABC

broadcast aired, these claims are time-barred.

FEDERAL EAVESDROPPING CLAIMS

Plaintiffs also assert civil causes of action pursuant to /8 U.S.C. §

$ 2511] and 2525, which prohibit unlawful eavesdropping under

federal law. These claims, however, are meritless. Federal law

provides that it shall not be unlawful for a person to intercept wire

lla

or oral communications where that person is a party to the

conversation, "unless such communication is intercepted for the

purpose of committing any criminal or tortious act in violation of

the Constitution or laws of the United States or any State." /8

U.S.C. § 2511(2)d). In this case, each surreptitious taping was

made by a party to the conversation. Therefore, Plaintiffs may

only recover if they can show that the recordings were made for

the purpose of committing a criminal or tortious act.

The legislative history of the Electronic Communications Privacy

Act of 1986, amending /8 U.S.C. § 2511, clearly indicates that

where a journalist is party to a conversation, the recording of such

a conversation for news gathering purposes is not criminal or

tortious conduct within the meaning of the statute. In amending

18 U.S.C. § 2511, the words "or for the purpose of committing

any other injurious act" were stricken. Congress noted that courts

had incorrectly interpreted this phrase to attach civil liability to a

journalist who had recorded conversations to which it was a party.

The 1986 amendment, therefore, was enacted specifically to

protect such conduct from civil liability. S. Rep. No. 99-541,

reprinted in 1986 U.S.C.C.A.N. 3555, 3571. Congress also noted

that such a broad interpretation of the statute would chill the F irst

Amendment right to a free press. 1986 U.S.C.C.A.N. at 3571. This

Court strongly agrees with that conclusion. n3 Such an

interpretation of the statute would “place[] a stumbling block in

the path of even the most scrupulous journalist." Id. Therefore, it

seems clear that Plaintiffs’ claims for relief under the federal

eavesdropping statute have no merit in law, making summary

disposition appropriate.

SPOLIATION OF EVIDENCE

Each of the Plaintiffs asserts spoliation of evidence claims against

Defendants ABC and Oetgen. It is well settled, however, that the

tort of spoliation of evidence applies only to the "destruction of

evidence needed for prospective civil litigation." Velasco v.

Commercial Bldg. Maintenance Co., 169 Cal App. 3d 874, 877 (2

Dist. 1985, 215 Cal. Rptr. 504). Therefore, because summary

disposition is proper as to each of Plaintiffs' other claims,

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Plaintiffs' spoliation claims must also be dismissed, for there is no

longer be any prospective civil litigation to which such claims

could attach.

CONCLUSION

For the reasons mentioned above, Defendants’ motion for

summary judgment is hereby GRANTED.

IT IS SO ORDERED.

DATED: February 12, 1997

James M. Ideman

United States District Judge

JUDGMENT

IT IS HEREBY ORDERED:

Defendants' Motion for Summary Judgment came before this

Court for review on Monday, February 10, 1997. In the Order filed

herewith, this Court GRANTED Defendants' motion. This Court

has determined that no triable issue of fact remains and that

Defendants are entitled to judgment as a matter of law.

IT IS SO ORDERED. .

DATED: February 12, 1997

James M. Ideman

United States District Judge

' On August 1, 1995, this Court ruled that all damages arising

from the ABC broadcast were time-barred by the Uniform

Publication Act. Therefore, Plaintiffs have alleged fraud damages

based on the "intrusions" of Oetgen and Lescht. On December 13,

1995, these claims survived a motion to dismiss, though the Court

noted that there appeared to be a "paucity of evidence" with

respect to Plaintiffs’ allegations.

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2 Plaintiffs’ counsel's elastic concept of the truth is best

illustrated in the following deposition passage:

Defense Counsel: When did you stop working at PMG entirely?

Donofrio: I took a leave of absence in October of 1993, and I was

terminated in February of 1994, after I asked for my leave to be

extended. Should I not be saying this?

Plaintiffs' Counsel: No, you're supposed to say --

Donofrio: Okay, because, I mean, I --

Defense Counsel: You're supposed to say everything that's

truthful.

Deposition of Candice A. Donofrio, Sept. 27, 1996, p.32.

3} For the same reason, Plaintiffs’ fraud claims cannot survive

summary judgment, as enforcement of such a civil claim at

common law would trigger state action that would chill the First

Amendment guarantee of a free press. See New York Times v.

Sullivan, 376 U.S. 254, 265, 11 L. Ed. 2d 686, 84 S. Ct. 710

(1964).

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Sec. 2511. Interception and disclosure of wire, oral, or

electronic communications prohibited

(d) It shall not be unlawful under this chapter for a person not

acting under color of law to intercept a wire, oral, or

electronic communication where such person is a party to the

communication or where one of the parties to the

communication has given prior consent to such interception

unless such communication is intercepted for the purpose of

committing any criminal or tortious act in violation of the

Constitution or laws of the United States or of any State.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.