Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, September 5, 2007

Appeals Court Rules Mother of Convicted Rapist Vulnerable to Invasion of Privacy Suit for Releasing Tape to Media

A California appellate court has ruled that Elizabeth Luster, mother of convicted rapist Andrew Luster, cannot claim the protection of the First Amendment to avoid an invasion of privacy suit brought by one of her son's victims as "Lynn Doe." The tapes were under a protective order, but Mrs. Luster released them to CBS, which later broadcast them on a news program.

The court accepted the following facts as true:  the interception was unlawful and the defendants, at a minimum had reason to know that it was unlawful; the defendants had no part in the illegal interception and never learned the identity of the person(s) who had made the interception; they had legally obtained access to the information though someone else had unlawfully intercepted it; the subject matter of the conversation was a matter of public concern.  (Bartnicki, supra, 532 U.S. at p. 524-525.)  The court specifically stated:  “The constitutional question before us concerns the validity of the statutes as applied to the specific facts of these cases.”  (Id. at p. 524, emphasis added.) 

            In balancing the competing interests, the Bartnicki court acknowledged that “some intrusions on privacy are more offensive than others,” but stated “the outcome of these cases does not turn on whether [the federal wiretapping statute] may be enforced with respect to most violations . . . without offending the First Amendment.  The enforcement of that provision in these cases, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.”  (Bartnicki, supra, 532 U.S. at pp. 533-534, emphasis added.)  The defendants were “unquestionably” engaged in a debate about a matter of public concern—the proper level of teacher compensation.   (Id. at p. 535.)  In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance.”  (Id. at p. 534, emphasis added.)  “One of the costs associated with participation in public affairs is an attendant loss of privacy.”  (Id. at p. 534.)  Therefore, in Bartnicki, the court concluded that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”  (Id. at p. 535.) 

           Bartnicki does not support Luster’s claim of absolute immunity from all tort liability given the facts of this case.  The privacy interest Doe asserts here in her unconscious, naked body captured by Luster’s son on videotape without Doe’s consent as he repeatedly raped her bears no resemblance whatsoever to the union representatives’ mutual interest in keeping their threatening communications relating to the public debate over teachers’ salaries private.

            We similarly reject Luster’s contention that in Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679,  the “California Supreme Court has specifically held that the First Amendment extinguishes any cause of action for invasion of privacy that might otherwise exist under state law, where the conduct of the defendant is protected by the First Amendment.”  This too is simply untrue.  As Luster acknowledges, the Gates court determined that “an invasion of privacy claim based on allegations of harm caused by a media defendant’s publication of facts obtained from public official records of a criminal proceeding is barred by the First Amendment . . . .”  (Gates, supra, 34 Cal.4th at p. 696, italics added, citations omitted.) 

            The First Amendment issue presented in Gates, like the question before the United States Supreme Court in Bartnicki, involved liability for publication of truthful information illegally obtained by a third party, while Doe’s tort claims in this case focus on Luster’s impermissible intrusion into private matters by accessing and disseminating the “Shawna GHBing” tape.  “To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff.  The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.”  (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 232; accord, Taus v. Loftus, supra, 40 Cal.4th at p. 725 [emphasizing unwanted access to confidential data source as basis for privacy tort based on intrusion].) Inasmuch as the facts here involve a videotape specifically subject to a sealing order in the criminal action and Doe has presented evidence of the efforts taken to limit the viewing of (an edited version of) the subject videotape to the jury, the court and attorneys in the criminal case, Luster’s citation to Gates and similar authorities is unavailing. 

            Luster’s representation that “there is no claim that the defendants disclosed any information or evidence that was not presented in court” ignores the record.   Her further contention that even if she did so, the information would still be protected by the First Amendment under Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97 and Oklahoma Publishing Co. v. District Court (1977) 430 U.S. 308 is equally false inasmuch as in both cases, there was no issue of privacy since precisely the subject information had already been made public.  (Smith, supra, 443 U.S. at 105 [“no issue here of privacy” inasmuch as the subject information—the name of a juvenile offender--  had already been made public]; Oklahoma Publishing, supra, 430 U.S. at 309 [reporters present in the courtroom heard juvenile’s name in open court and also photographed him].)  Because Luster has utterly ignored the conflicting evidence in this regard, we summarily reject her arguments that Doe’s other causes of action fail as a matter of law. 

           As the record reveals, the evidence is in sharp conflict on multiple issues, such as whether Luster knew that the tapes she authorized CBS to take, view, copy and broadcast included the actual rape tape in this case.  According to the deposition testimony of CBS employee Abra Potkin, Potkin spoke with Luster and told her that, while filming at the house, a producer (Marc Goldbaum) “had found a box of tapes that he believed were tapes from the case.”  Luster asked Potkin what she thought the tapes were.  “I told her I thought they could be the tapes from the case and there could be other tapes, and she agreed to let me take them, and I agreed that we would get them back to her as soon as possible or promptly.” 

            Further, Luster’s deposition testimony was inconsistent with her declaration in support of the motion to strike.  For example, she previously claimed CBS had stolen the videotapes from her son’s home without her permission.  She also had previously testified that her son had not given her permission to release his belongings.  In addition, she said she knew her son had tried unsuccessfully to get a copy of the tape, said she would do anything to help her son and said he told her the complete tape would exonerate him.  Her declaration itself conspicuously omits a statement that she did not know about a protective order in the case—only that she did not know its “specific content.” 

Read the entire ruling here.

Read more here.

The case is Doe v. Luster, No. B184508, 2007 WL 2120855 (Cal. Ct. App., 2d Dist., Div. 7 July 25, 2007).

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