Media attorneys win big as newsgathering takes hit

Friday, July 9, 1999

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

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

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