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Media attorneys win big as newsgathering takes hit

By Douglas Lee
Special to freedomforum.org

07.09.99

The California Supreme Court's recent newsgathering decision might not be good for the media, but it's great for media lawyers.

In Sanders v. ABC, the California court dealt a blow to investigative reporters, holding that the media can in some circumstances be liable for secretly recording conversations, even if those conversations can be overheard by others. The court then created an intricate analysis for determining when those circumstances are present, an analysis that undoubtedly will make media lawyers an indispensable — if unwelcome — part of all undercover reporting teams.

At issue in Sanders was whether a person could claim a privacy right in workplace conversations that other employees could overhear. The conversations in Sanders were secretly videotaped and recorded by an ABC employee who, as part of an investigative report, had obtained employment as a tele-psychic. Two of the tele-psychics sued ABC after the network broadcast parts of conversations in which they had participated.

The jury ultimately returned verdicts against ABC totaling $1.2 million. The appellate court overturned the verdicts, ruling that the two tele-pyschics could not reasonably expect that their conversations would be private. The state Supreme Court, in a 7-0 decision, disagreed. The court, however, did not reinstate the verdicts but instead instructed the appellate court to reconsider the case.

In its ruling, the California Supreme Court drew several fine lines that likely will be blurred in other cases. In this case, the court said, the tele-psychics reasonably could expect privacy because their workplace was not regularly open to the public and the media. According to the court, however, a more accessible workplace could dilute that privacy interest. The tele-psychics' expectation of privacy also was bolstered, the court said, because the conversations occurred among co-employees. Had the conversations involved customers or members of the public, the reasonableness of the tele-psychics' privacy interest might be different.

The court then blurred its own lines by creating two types of privacy. One type of privacy, the court suggested, is the privacy a person reasonably expects from co-workers, customers and other members of the public. The other type, the court said, is the privacy a person reasonably expects from secret videotaping and recording. The court recognized that no one ever expects covert taping but indicated that conduct that occurs in public view might be fair game for zoom lenses.

By adopting this circumstances-based analysis, the court left a host of questions unanswered. Is a workplace that is open to the public also presumptively open to the media? Are there different expectations of privacy in different public places? Does a person in a public place have a reasonable expectation that a "private" conversation will not be overheard and reported? Is that expectation different if the conversation is overheard by a reporter standing nearby or is recorded with a hidden microphone? What is the more reasonable expectation: that every member of the public is an undercover reporter or that only those people who identify themselves as reporters are likely to tape conversations?

Answers to these and other questions likely will be obtained only through years of litigation. The case-by-case nature of the Sanders analysis, however, likely will chill investigative reporting. While judges and juries probably welcome a more cautious approach to newsgathering, the only real benefactors of less undercover reporting are those persons and companies that escape investigation.

In addition to defining the scope of individuals' privacy rights, the post-Sanders litigation likely will fuel the ongoing debate about whether the First Amendment permits judges and juries to sit as super-editors. In Sanders, for example, the court indicated that the investigative journalist's motives are relevant in determining whether privacy rights are violated. The court also suggested that an invasion of privacy can in some cases be "justified by the legitimate motive of gathering the news." The court, however, offered no guidance as to how to determine the purity of a reporter's motives or how to evaluate the legitimacy of a particular news story.

Only as other cases are decided will we be able to judge the full effect of Sanders. The fact that those other cases will have to be litigated, however, suggests that the first impression of Sanders should not be a good one.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.