Facts Not Malice Please

Wednesday, August 28, 2013

Page 6

IN MY OPINION (Column)

Facts Not Malice Please

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

No, it is not likely that the City Council will name its next avenue the Ed Snowden Street.

Rodeo Drive in Beverly Hills is not in danger of being renamed. Mount Rushmore, by all indications, is secure. There is general, in fact almost universal condemnation, of a 29-year old high-school-dropout who chose to publicize millions of telephone conversations to the world.

It is rare to find an agreement between the New York Times and former Vice President Dick Cheney, but this later date Daniel Ellsberg accommodated. When the U.S. government sought to extradite him, this asylum seeker traveled from country to country to seek asylum which appears inevitable. Are one’s personal and private telephone records completely or partially immune from disclosure? The answer seems to lie in the meaning of the word “privacy.”

Privacy violations were initially not a tort. There was a related tort of defamation, but truth was a defense. Then, a belated attempt in 1880 appeared in a noted article in 4 Harvard Law Review by Samuel D. Warren and Louis D. Brandeis entitled “The Right to Privacy.” Judicial acceptance did not soon follow until 1931 when the California Supreme Court decided that a former prostitute who was unsuccessfully tried for murder should get relief. She now lived an exemplary, virtuous, honorable, right life and had abandoned her life of shame.

The film, entitled “The Red Kimono” quickly became a landmark on privacy. What made it so actionable was the unnecessary mention of her name. Soon, the Restatement accepted this new tort but as the law developed it failed to develop the fact that there were actually four different torts, i.e., intrusion, public disclosure of private facts; false light in the public eye; and appropriation. What was not needed was malice.

Two further events crystalized California’s full acceptance of the right of privacy as a tort, and California’s voters added the right of privacy to the Constitution and White v. Davis, 13 Cal 3rd 757 was decided. In White v. Davis, plaintiff was held to have standing as a taxpayer to enjoin illegal expenditures of public funds. What were the illegal expenditures? Surveillance of a university classroom. Free speech was chilled but not prohibited. Although it is a bit difficult to interpret this police conduct as one involving privacy, the case was so interpreted.

This column would not be complete without mentioning Hill v. NCAA, a case involving expectation of privacy. Random urine sampling by the NCAA of college athletes is not a violation of the privacy clause of the California Constitution, the court said.

And so, a new tort is born.