Case No. S 115008 Confidential Attorney-Client Communication and Attorney Work Product IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Steve Gates, PlaintifflRespondent, vs. Discovery Communications, Inc., et aI., Defendant!Appellant. After A Decision By The Court Of Appeal Fourth Appellate District, Division One Case No. D039399 On Appeal From Superior Court of the County of San Diego, Central Division The Honorable Kevin A. Enright, Judge Case No. GIC 769395 REQUEST FOR LEAVE TO FILE AMICUS BRIEF; AMICUS BRIEF OF THE MOTION PICTURE ASSOCIATION OF AMERICA, INC., IN SUPPORT OF APPELLANT LAS99 1310094-9.045025.0010
Transcript
Case No. S 115008
Confidential Attorney-Client Communication and Attorney Work Product
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
Steve Gates, PlaintifflRespondent,
vs.
Discovery Communications, Inc., et aI., Defendant! Appellant.
After A Decision By The Court Of Appeal Fourth Appellate District, Division One
Case No. D039399
On Appeal From Superior Court of the County of San Diego, Central Division
The Honorable Kevin A. Enright, Judge Case No. GIC 769395
REQUEST FOR LEAVE TO FILE AMICUS BRIEF; AMICUS BRIEF OF THE MOTION PICTURE ASSOCIATION OF
AMERICA, INC., IN SUPPORT OF APPELLANT
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McDERMOTT, WILL & EMERY Robert H. Rotstein Nicolas F. Oettinger 2049 Century Park East 34th Floor Los Angeles, CA 90067-3208 Telephone: 310-277-411 0 Facsimile: 310-277-4730 Attorneys for Amicus Curiae THE MOTION PICTURE ASSOCIATION OF AMERICA, INC.
REQUEST FOR LEAVE TO FILE AMICUS BRIEF
Pursuant to Rule 29.1 (t) of the California Rules of Court,
amicus the Motion Picture Association of America, Inc. ("Amicus") hereby
requests leave to file the accompanying amicus brief in support of
appellants Discovery Communications, Inc. and New Dominion Pictures
LLC (collectively "Appellants").
Amicus is a not-for-profit trade association founded in 1922
to address issues of concern to the United States motion picture industry.
The members of the MP AA include Sony Pictures Entertainment Inc.,
that are not fully discussed in the briefs of the parties. In particular,
Amicus discusses how reaffirmation of the oft-questioned opinion in
Briscoe v. Reader's Digest (1971) 4 Ca1.3d 52, not only would conflict
with United States Supreme Court decisions that were announced a few
years later, but also would have a real, practical chilling effect on the ability
of producers of motion pictures like members of the MP AA to create works
using facts contained in records open to the public [and to continue
distribute existing works based on facts in records open to the public
relating to past events]. Cox Broadcasting v. Cohn (1975) 420 U.S. 469, 43
L.Ed.2d 443,496,95 S.Ct. 1029 holds that the First and Fourteenth
Amendments will not allow a state to subject the media to liability for
truthfully publishing information released to the public in official court
records. The Briscoe opinion is inconsistent with Cox Broadcasting, failing
to provide the certainty and predictability that the First Amendment
requires. The concepts of rehabilitation and passage of time, which form
the lynchpin of both Briscoe and Plaintiff s argument on appeal, are simply
too nebulous to provide guidelines for creators of expressive works.
For these reasons, Amicus submits this brief in support of
Appellants and asks this Court to affirm the ruling of the Court of Appeal
and hold that Briscoe is no longer good law. This briefinc1udes references
to and discussions of arguments and authority not found in the briefs that
have been submitted by the parties.
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Dated: November , 2003 --
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Respectfully submitted,
McDermott, Will & Emery ROBERT H. ROTSTEIN NICOLAS F. OETTINGER
By: ----------------------------
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Robert H. Rotstein Attorneys for Amicus Curiae THE MOTION PICTURE ASSOCIATION OF AMERICA, INC.,
I. PRELIMINARY STATEMENT
The United States Supreme Court and this Court recognized
long ago that motion pictures and television programs function as important
channels of free expression and thus receive full protection under the First
Amendment. Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495 (motion
pictures fall within the ambit of the First Amendment); Schad v. Mt.
Ephraim (1981) 452 U.S. 61, 65 (motion pictures receive same level of
First Amendment protection as political and ideological speech); Guglielmi
v. Spelling-Goldberg Productions (1979) 25 Ca1.3d 860, 866-67 (according
First Amendment protection to motion picture). At the same time, the
Constitution provides a First Amendment right to publish true facts
contained in records open to the public. Cox Broadcasting v. Cohn (1975)
420 U.S. 469, 43 L.Ed.2d 443, 95 S.Ct. 1029. In exercise of these two
paramount First Amendment principles, the motion picture industry has for
decades relied on facts about a crime contained in records open to the
public to create countless, and often classic, motion pictures and television
programs.] The importance of these works as vehicles of free expression
cannot be questioned.
1 For example, the motion picture Compulsion (1959) was based on the 1924 trial of murderers Leopold and Loeb and their defense by renowned trial lawyer Clarence Darrow. The Falcon and the Snowman (1985) was based on the true story of a low-level CIA employee who sold classified documents to the Soviet Union in the 1970s. Denzel Washington won an historic Academy A ward for his performance in The Hurricane (1999), a movie based on the wrongful imprisonment and eventual release of boxer Rubin 'Hurricane' Carter. Hillary Swank won an Academy A ward for her performance in Boys Don 'f Cry (1999), a movie based on the 1993
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Inconsistently with the constitutional protections afforded
motion pictures and publications of true facts contained in records open to
the public, PlaintifflRespondent Steve Gates asks this Court to adopt a rule
that would have a profoundly chilling effect on the ability of creators of
expressive works to produce motion pictures and television programs using
material contained in records open to the public. Plaintiff was convicted in
1992 of being an accessory after the fact to the well-publicized murder of
Salvatore Ruscitti. In 2000, Defendants/Appellants Discovery
Communications, Inc. and New Dominion Pictures LLC (collectively
"Discovery") broadcast a television program about the murder. Relying on
facts contained in records open to the public, Discovery truthfully
recounted Plaintiff s role in the crime. Plaintiff sued Discovery for
invasion of privacy, claiming that Discovery had no right to use his name
truthfully in the broadcast because Plaintiff had in the years since his
criminal conduct become rehabilitated and in that way had regained his
right of privacy. Plaintiff relied on Briscoe v. Reader's Digest (1971) 4
Cal.3d 52, in which the Court held that a plaintiff who had hijacked a truck,
but had since become rehabilitated, could sue a magazine that, eleven years
murder of Teena Brandon. At least two television movies have been based on real life events surrounding Amy Fisher (Amy Fisher: My Story (1992) and The Amy Fisher Story (1993)), the socalled "Long Island Lolita," whose attempt to murder Mary Jo Buttafucco garnered substantial publicity. A 1997 documentary entitled 4 Little Girls (directed by Spike Lee) and a 2002 madefor-television motion picture entitled Sins of the Father recounted events surrounding the 1963 racially-motivated bombing of a church in Birmingham, Alabama, in which four young girls perished. The Laramie Project (2002) and The Matthew Shepard Story (2002), recounted the murder of Matthew Shepard, a widely reported hate crime against a gay man.
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after the crime, had published a truthful article recounting the plaintiffs
role in the crime.
The Court of Appeal rejected Plaintiffs argument, holding
that, in light of decisions that the United States Supreme Court issued after
the Briscoe opinion, Briscoe is no longer good law and that Discovery had
a constitutional right to broadcast truthful information contained in records
open to the public about Plaintiffs role in Ruscitti's murder. Gates v.
Discovery Communications, Inc. et ai. (2003) 106 Cal. App. 4th 677, 131
Cal. Rptr. 2d 534. Specifically, the Court of Appeal relied on Cox
Broadcasting v. Cohn, in which the United States Supreme Court held that
the First Amendment prohibits a state from imposing liability on the
publisher of the name of a rape victim where that information was
contained in records open to the public. Nonetheless, Plaintiff asks this
Court to reaffirm Briscoe and to recognize an exception to Cox
Broadcasting where the plaintiff is a rehabilitated criminal who seeks to
sue for invasion of privacy relating to a crime that occurred in the past.
As discussed below, to adopt Plaintiffs position and
recognize Briscoe as an exception to the general rule would profoundly and
impermissibly chill the creation of new expressive works based on facts
about crimes contain~d in records open to the public. [It would also
threaten the motion picture industry's ability to continue to distribute
existing works that recount matters of public record.] Amicus therefore
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respectfully asks this Court to confirm what the Court of Appeal and many
courts in other jurisdictions have recognized - that Briscoe is no longer
good law and that the First Amendment mandates that a publisher have an
absolute right to publish matters contained in records open to the public.
II. THERE IS NO BASIS FOR TREATING BRISCOE AS AN
EXCEPTION TO THE FIRST AMENDMENT PRINCIPLE THAT A STATE MAY NOT HOLD A PUBLISHER LIABLE FOR
PUBLISHING MATTERS CONTAINED IN OFFICIAL RECORDS OPEN TO THE PUBLIC; RECOGNIZING SUCH AN EXCEPTION
WOULD ADVERSELY IMPACT ON THE EXERCISE OF FREE SPEECH
In Cox Broadcasting, the United States Supreme Court
instructed that, where information in a publication is derived from official
court records open to the public, publication of the information is
absolutely protected. 420 U.S. at 496. Indeed, the issue implicated in Cox
Broadcasting - publication of the name of a rape victim - could hardly
have raised a greater privacy interest. It follows that where, as in this case,
the source of information derives from court records about a crime open to
the public, the public/private status of the plaintiff is an irrelevant
consideration. Because the Briscoe opinion held that a pUblication could be
liable for invasion of privacy for publishing true information contained in
court records open to the public, it is, as the Court of Appeal concluded,
squarely inconsistent with Cox Broadcasting. 2
2 In holding that Cox Broadcasting implicitly overruled the Briscoe opinion, the Court of Appeal reached the same conclusion as numerous courts and commentators that have questioned or
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Amicus will not repeat the arguments establishing that the
Briscoe opinion is inconsistent with Cox Broadcasting and its progeny.
That issue is thoroughly addressed in Discovery's answering brief. Instead,
Amicus focuses on how ignoring the rule enunciated in Cox Broadcasting
and instead treating Briscoe as an extraordinary exception to the rule would
create significant practical difficulties for creators of expressive works who
use facts contained in records open to the pUblic.3
In Briscoe, the defendant Reader's Digest published an article
about truck hijacking. 4 Cal. 3d at 532. Relying on matters contained in
records open to the public, the article identified plaintiff Melvin Briscoe as
a person who had hijacked a truck and engaged in a gun battle with police.
The hijacking had occurred 11 years before Reader's Digest published its
article. Claiming that immediately after the incident he had abandoned his
life of crime (id.), Briscoe sued Reader's Digest for invasion of privacy,
rejected outright the reasoning of Briscoe. See, e.g., Willan v. Columbia County, 280 F.3d 1160 (7th Cir. 2002) (declaring the principles underlying Briscoe to be "dead" in light of Cox Broadcasting); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1233 (7th Cir. 1993) (in holding that court records concerning plaintiffs divorce and child support did not become private after 30 years in the public record, the Seventh Circuit stated that facts in the public record are "beyond the power of tort law to conceaL"); Shulman v. Group W Productions, Inc. (1998) 18 CaL4th 200, 230, 74 CaLRptr.2d 843 (Kennard, 1., concurring) (expressing doubt that Briscoe survived Cox Broadcasting); Robert D. Sack, Sack on Defamation: Libel, Slander and Related Problems ("Sack"), § 12.4.5.6 (2003) (discussing Briscoe, and noting that Cox "sheds serious doubt on the vitality of the line of cases holding publication of a person's criminal record, however ancient, to be actionable."); Rodney A. Smolla, Law of Defamation ("Smolla"), § 10:53 (2003) (noting that Briscoe is "undermined by Cox."); D. J. Solove, Access and Aggregation: Public Records. Privacy and the Constitution, 86 Minn. L. Rev. 1137, 1181-1182 (2002). 3 Amicus notes that both this case and Briscoe involved publications based on information contained in official court records open to the public, thus falling squarely within Cox Broadcasting. The Court need not decide whether all publication of information contained in any "public record" - e.g., a governmental medical record not open to the public - is immune from liability for invasion of privacy.
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asserting that the article constituted an actionable public disclosure of
private facts. In the face of Reader's Digest's First Amendment defense,
the Court held that Briscoe's identity, though in records open to the public,
had with the passage of time become private; and that the state's interest in
rehabilitation outweighed the First Amendment interest in allowing
Reader's Digest to publish the name of a former, rehabilitated criminal.
The Briscoe opinion acknowledged that decisions implicating
First Amendment issues cannot be decided on an ad hoc basis, but rather
must afford as much predictability and certainty as possible, lest a court
"unwittingly chill First Amendment freedoms." 4 Cal. 3d at 542 n.18. In
finding that predictability in the case before it, the opinion stated:
[T]here is little uncertainty here. A publisher does have
every reason to know, before publication, that
identification of a man as a former criminal will be
highly offensive to the individual involved.
Id at 543 n. 18 (emphasis in original). This conclusion missed the
mark. The Briscoe opinion failed to recognize that any disclosure of
a person as a former criminal will be highly offensive to the
individual involved, irrespective of how long after the crime the
disclosure occurs or whether the person has become rehabilitated.
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The proper analysis under the First Amendment, however, is
whether clear guidelines can ever be drawn regarding when a
criminal becomes rehabilitated so as to justify an extraordinary
exception to Cox Broadcasting. For the reasons that follow, no such
guidelines can satisfy the First Amendment.
A. Adopting Gates' Position and Creating An Exception to Cox Broadcasting Would Pose Serious Practical Problems/or Creators 0/ Expressive Works Who Desire to Recount Past Events That Are Contained in Records Open to the Public
Those responsible for "clearing" expressive works like
motion pictures, television programs, documentaries, and books - that is,
those who review those works to determine whether they implicate
anyone's legal rights - necessarily exercise prudence in deciding what
information should be included in the works. The substantial economic
investment necessary to produce and distribute motion pictures and
television programs, coupled with the increasing costs of litigation, make
avoidance of lawsuits a high priority. Resuscitating Briscoe would
inevitably force those responsible for clearing motion pictures and
television programs to make choices that would inhibit the creation of
expressive works based on matters of public record.
Briscoe implicitly turns on the premise that some crimes (the
hijacking recounted in Briscoe) are less notorious, and therefore, less
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newsworthy than others (e.g., the assassination of President John F.
Kennedy). Presumably, the rehabilitated individual in a less notorious
crime has, under Briscoe, a broader right to privacy than a participant in a
more highly publicized crime, while the perpetrators of a crIme like a
presidential assassination can never reclaim a right of privacy. 4 If this is,
indeed, the intent of Briscoe, creators of expressive works must somehow
weigh the significance of a past crime to determine if it was "important
enough" to allow the creator to portray the participants in the crime. Such a
line can be impossible to draw. For example, the crime to which Plaintiff
himself was an accessory after the fact, the murder of Salvatore Ruscitti,
received extensive news coverage. Yet, according to Plaintiff, this
publicity was insufficient to allow the media to report his role in the crime
nine years after his arrest - even though the person who actually shot Mr.
Ruscitti remains at large. Were Briscoe the law, the necessity for producers
to make uncertain choices about a crime's "importance" after a lapse of
time would inevitably chill speech.
Briscoe also implicitly assumes that minor participants in a
crime can more easily regain privacy rights than major participants.
4 If this were not the underlying assumption in Briscoe, then notorious criminals like Sirhan Sirhan or John Hinckley could claim rehabilitation and assert that the media can no longer use their names in recounting the details of their crimes, a proposition that is anathema to the First Amendment. Cf Street v. National Broadcasting Co., 645 F.2d 1227, 1235 (6th Cir. 1981) ("[O]nce a person becomes a public figure in connection with a particular controversy, that person remains a public figure thereafter for purposes of later commentary or treatment of that controversy. ")
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However, a producer of an expressive work could never with the requisite
degree of certainty accurately assess the relative degree of culpability of a
particular criminal. Is an accessory after the fact to murder less culpable
than a person convicted of involuntary manslaughter? Or than a person
convicted of embezzlement? The need for producers like the MP AA' s
members to engage in such determinations is inconsistent with the First
Amendment's mandate that publishers have clear guidelines regarding the
boundaries of free speech.
Likewise, allowing Briscoe to stand as an exception to Cox
Broadcasting would force creators of expressive works to investigate
whether participants in the crime have become rehabilitated. These
investigations would, to say the least, be highly impracticable, especially in
light of the passage of time since the crime occurred and cost exigencies.
Indeed, it is often difficult even to locate an individual several years after
an incident, much less to determine whether that individual has become
rehabilitated.
Even if producers could efficiently conduct these
investigations, it would still be difficult to ascertain whether a person has in
fact become rehabilitated.s For example, if a former burglar has been
5 The Briscoe opinion rests in large part on dubious assumptions about the rehabilitation of a criminal, specifically that if the person's identity is revealed in later years, society will scorn the individual and the individual will return to a life of crime. Briscoe, 4 Cal. 3d at 539. As the court noted in Willan v. Columbia County 280 F.3d 1160, 1162 (7th Cir. 2002), the assumption that a convicted criminal cannot escape a life of scorn is "paternalistic in doubting the ability of people
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convicted for driving under the influence of alcohol, but no other crime,
does that qualify as rehabilitation? It is also unclear from Briscoe whether
the former criminal's post-crime social and moral behavior figures into the
rehabilitation formula.
Neither does the Briscoe opinion shed light on the related
question of how much time must elapse before a convicted criminal is
deemed to be rehabilitated. Briscoe,4 Cal. 3d at 540. The Briscoe opinion
reveals only that the allegedly invasive article appeared 11 years after the
crime and that the plaintiff "immediately" after the incident abandoned his
life of shame. Jd at 532. In this case, plaintiff Gates claims to have become
rehabilitated only about six years after his release from prison (his release
occurred in 1994, and Discovery broadcast its program in 2000). Nothing
in Briscoe provides creators and producers guidance as to whether a person
who has been rehabilitated for nine years, or five years, or three years can
prevent publication of public information about his or her role in criminal
activity. The Briscoe opinion also says nothing about how to pinpoint the
to give proper rather than excessive weight to a person's criminal history." The assumption is also cynical in assuming that the rehabilitated individual will invariably lie to children and friends about the past rather than using the past as an object lesson. Just as faulty is the supposition that publication of past criminal events will somehow drive the individual back into a life of crime. See Briscoe, 4 Cal.3d at 539. In fact, a rehabilitated individual has many reasons to refrain from resuming a life of crime, including the realization that it is moral and ethical to live an honest life; the fear of further incarceration; and the desire to regain the right to vote and other rights of citizenship. Finally, the Briscoe opinion unduly emphasizes the state's interest in rehabilitation at the expense of the strong state interest in maintaining access to public records. See, e.g.. Los Angeles Times v. County of Los Angeles, 956 F. Supp. 1530, 1539 (C.D. Cal. 1996) (noting the "the public's First Amendment right of access to a variety of court records" and describing that various court records that the public is entitled to access); see also California Rules of Court rule 243.1 (d) (permitting a court to order that a record be filed under seal only where there exists "an overriding interest that overcomes the right of public access to the record ... ")
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time from which to measure the length of rehabilitation: from the date of
the crime, from the date of trial, from the date of incarceration, or from
some other time. To require producers to resolve these questions would
inevitably impede the use of public information in expressive works.6
B. The Rule Enunciated in Briscoe Could Impermissibly Chill The Production and Dissemination Even of Those Works Recounting Current Events Reflected in Records Open to the Public
The holding of Briscoe becomes even more problematic in
light of technological advances that have provided significantly broader
public access to expressive works. When Briscoe was decided in 1971,
most consumers gained access to expressive works through the print media,
network and local broadcast television (with a limited number of stations),
and theatrical motion pictures. Since 1971, the sources of public access to
expressive works have burgeoned with the advent of the home videolDVD
market, cable television capable of delivering hundreds of channels, and the
Internet.
6 The Briscoe opinion - and Plaintiff Gates in this case - suggest that a publisher's First Amendment rights are adequately protected where the publisher reports the crime, but does not reveal the individual's name. Briscoe,4 Cal. 3d at 537 ("[I]dentification of the actor in reports of long past crimes usually serves little independent public purpose." (emphasis in original). As noted in Haynes, however, "the use of pseudonyms would not [get a defendant] off the legal hook." Haynes, 8 F.3d at 1233 (noting that the factual details of the plaintiffs' lives would have identified them to their family and friends even if pseUdonyms were used). Moreover, changing all names limits the range of expressive works that exist. ld at 1233 ("Reporting true facts about real people is necessary to 'obviate any impression that the problems raised in the [book] are remote or hypothetical."') (citing Gilbert v. Medical Economics Co., 665 F.2d 305, 308 (lOth Cir. 1981)).
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The ability to provide broader access to content, coupled with
the need for additional content, has given expressive works a longer "shelf
life." For example, the home video market has created a public demand for
content that, in earlier years, was not readily available. One need only visit
a video rental store to see that the wide selection of rental titles commonly
available covers both recent releases and a significant, and constantly
expanding, back catalog of older films and television shows. Republishing
expressive works is a laudable goal in furtherance of the public interest.7
Moreover, technological advances in filming and taping have
promoted the development of new and important genres of television
programs. For example, a number of television programs depict law
enforcement's real time pursuit of criminals. Other television programs
assist law enforcement in apprehending fugitives from justice. Numerous
television programs broadcast actual criminal trials. As a result, many
works based on public records of criminal activity - though current at the
time - will eventually depict crimes that occurred in the distant past.
Ironically, the more successful or critically acclaimed a motion picture or
television program is, the more likely that future generations will want to
7 As the court noted in Johnson v. Harcourt, Brace, Jovanivich, Inc. (1974) 43 Cal.App.3d 800, 883, in another context, "must as the fable is an educational tool, so likewise is the true life example of integrity one which justifies repetitive recounting . .. " (emphasis added). Similarly, the repetitive recounting of criminal activity and its consequences serves an important social and historical purpose.
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watch it. 8 Yet, were the Court to recognize Briscoe as an exception to Cox
Broadcasting and its progeny, a plaintiff originally depicted in a matter of
current public record could claim, with the lapse of time, that the motion
picture constituted an invasion of privacy. Requiring producers to vet older
works to determine whether they depict true events, and then to investigate
the persons depicted to determine whether they have become rehabilitated,
would manifestly be an impossible task.9
In summary, the Briscoe opinion is rife with uncertainty that,
if reaffirmed as law, could severely impede the dissemination of valuable
works based on records open to the public. As Briscoe itself observes, suits
involving the First Amendment should not be decided on an ad hoc, case-
by-case basis. This very observation requires the rejection of Briscoe.
III. CONCLUSION
Nearly thirty years ago, the United States Supreme Court held
in Cox Broadcasting that the First Amendment prevented a state from
imposing liability on a person who publishes true facts contained in records
open to the public. The Court of Appeal reaffirmed this constitutional rule,
8 As noted in footnote I, supra, both The Hurricane and Boys Don 'f Cry were based on actual crimes. Both motion pictures featured Academy A ward winning performances by lead actors. 9 As an example, a number of years ago multiple productions about Amy Fisher, the teenager who shot Mary 10 Buttafuco, were broadcast over different networks, all in response to the significant publicity about the crime. The public has an interest in access to those works, and will in ensuing years, if for no other reason than as a matter of significant cultural history. Yet, even now that the crime had faded in the public consciousness, it would simply be unacceptable under the Constitution to subject distributors of those works to claims of invasion of privacy simply because of passage of time.
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recognizing that the principle enunciated in Briscoe v. Readers Digest was
no longer good law in light of intervening United States Supreme Court
cases. A ruling in plaintiff Gates' favor would impermissibly subject
creators of expressive works to the threat of lawsuits in California merely
for exercising their First Amendment right to publish information that is by
definition open to the public. Amicus therefore respectfully urges this
Court to affirm the ruling of the Court of Appeal.
Dated: November , 2003 --
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Respectfully submitted,
McDermott, Will & Emery ROBERT H. ROTSTEIN NICOLAS F. OETTINGER
By: -----------------------------
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Robert H. Rotstein Attorneys for Amicus Curiae THE MOTION PICTURE ASSOCIATION OF AMERICA, INC.,
