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The California Supreme Court will decide two media law cases this year with far-reaching effects for business people in the state. In Sanders vs. American Broadcasting Cos. the Court will rule whether journalists can be sued for invasion of privacy and disloyalty when they hire on as ordinary employees and then secretly videotape alleged wrongdoing in the workplace. The Court's decision will clarify the extent of a worker's duty of loyalty to an employer, and explain whether work places are zones of privacy akin to homes.
Also pending is a decision in NBC Subsidiary (KNBC-TV) Inc. vs. Superior Court, where the high court will decide if the public's First Amendment right to attend criminal trials applies equally to civil cases. Often, celebrities and businesses embroiled in civil suits seek closed trials and sealed records to avoid embarrassing publicity. But some trial courts, and San Diego’s was among the first, have adopted strong policies disfavoring secrecy in civil proceedings and mandating access to civil courtrooms and records.
The threat of open trials has prompted some businesses to include arbitration clauses in their contracts. These provisions aim to guarantee that unflattering disputes with competitors, employees and customers can be fought out in a confidential setting.
The Supreme Court heard oral argument in the Sanders case during a rare session at San Diego’s California Western School of Law this spring. Plaintiff's counsel Neville Johnson claimed KNBC's reporter breached privacy rights and duties of loyalty when she hired on as a telephone psychic and secretly videotaped advicemeisters for an exposé on the tele-psychic advice industry. NBC lawyer Andrew White countered that workplace conversations are not private and consequently there was no invasion or trespass. The high court justices pondered whether ruling that the workplace is a semiprivate zone would chill news gathering and First Amendment rights.
The Sanders case is similar to a case in which East Coast grocery chain Food Lion won fraud damages for surreptitious videotaping by ABC news without disproving its TV report that unsanitary conditions were common in some stores. Both the Food Lion and the NBC Subsidiary cases reflect a trend in which corporations stung by negative investigative reports forego libel claims and instead seek hefty damages for fraud, privacy violations and loyalty breaches allegedly committed in pursuit of news.
The NBC Subsidiary case finally brings before the state Supreme Court an issue that has frustrated journalists for years: How open are civil trials? Open access to criminal trials has been a recognized First Amendment right for decades, but courts vary widely in admitting the public to sensitive civil proceedings. In NBC Subsidiary, reporters were excluded from portions of an unflattering courtroom dispute between ex-lovers Clint Eastwood and Sandra Locke. Advocates of open civil proceedings contend public access to and discussion of public institutions is fundamental to the public welfare. Furthermore, courts are paid for by the public and should be open to the public. Also often cited is the "disinfectant" effect of public scrutiny of public institutions.
Juvenile Court proceedings were routinely held in secret, but a state amendment in the 1980s opened juvenile courtroom doors in serious felony cases. That change permitted exposés of the juvenile justice system and aired criticisms of its handling of an increasingly violent population of underage offenders. Opponents of open hearings countered that the new policy led juvenile courts to abandon their focus on rehabilitation.
Plaintiffs' personal injury lawyers also long have argued for access to civil trials and documents to prevent defense lawyers from keeping product defect evidence secret from other plaintiffs. Defense attorneys counter that open civil trials risk release of their clients' trade secrets and proprietary information. The civil defense bar also argues that open proceedings allow plaintiffs to use adverse publicity as a bargaining chip to leverage inflated settlement demands.
Wherever the high court comes down on these issues, both Sanders and NBC Subsidiary promise to influence the way owners and managers conduct business, by redefining the degree of privacy accorded workplace communications, and determining once and for all how much secrecy can be had in the public forum of the local courthouse.
Pamela Lawton Wilson is an attorney whose practice includes land use, political and media law matters at the civil firm of Sullivan Wertz McDade & Wallace in Downtown San Diego.
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